Tag Archives: Supreme Court

Why I Support Justice Swatanter Kumar’s Defamation Lawsuit.

I will make my bias for writing the post clear at the outset. I started my litigation practice after completing my Masters in intellectual property and returning to India in 2005. Like every other rookie in the Courts, I was assigned the job of observing the proceedings and to learn. In legal parlance, rookies are counsels to take passovers in the Courts at best in their initial phase.

It was His Honour Swatanter Kumar who grilled the confidence in me and made me totally comfortable to argue a matter before him. Long story short, the patient Judge asked my Senior to sit next to me and assist me when required. I completed the final arguments of the case when I was just two weeks old in the profession. Knowing the file quite well also helped me from not fainting during the arguments in a courtroom packed of lawyers.

Of many instances when I got a chance to appear before His Honour Kumar, I once also saw a matter where an elderly lady was in his Court who knew no English and could speak only in Punjabi. Justice Kumar spoke to her in Punjabi patiently and kept dictating the order in English as well. The list is endless but the purpose is just to express my experience of the Judge, as a Judge.

Much has already been in circulation about the magnitude of the recent allegations against His Honour Swatanter Kumar. This post is not about that. Not exactly, about that.

Since January 10th when CNN-IBN first broke the news that the intern had named His Honour in her affidavit, nearly the entire media had been presenting the same news with as much juice as possible. After having witnessed the recent media frenzy against His Honour A. K. Ganguly and the way TV crews were chasing the Judge nearly every possible place to shove a microphone at His mouth, we all apprehended same frenzy against His Honour Kumar as well.

Although the intern has moved the Supreme Court for implementations of the Vishaka guidelines, His Honour Kumar also filed a civil action for defamation against certain national dailies and news channels seeking damages.

Justice Manmohan Singh’s interim order passed today in Justice Swatanter Kumar’s suit can be accessed here. Justice Singh has restrained the Defendants in the interim from showing Justice Kumar’s photographs among other relief. Justice Kumar’s counsel fairly conceded during the course of hearing that there can be no embargo on news report insofar they are disseminating news and information.

Coming back to the media, just to fill the 24 hours slot, a news channel cannot, and should not, be allowed to add or insert contents which are not even remotely the suggestions in the main complaint.

A particular journalist’s tweet, on the allegations surrounding His Honour Kumar, I found utterly objectionable. In fact, even if assuming that all the allegations against the Judge are proven true even then such a language cannot be used by anyone. Especially not from someone in the media who boast of the very freedom of speech and expression which the Courts provide them.

In legal fraternity, everyone is hoping that the matter is resolved soon. Justice Kumar has spent close to half a century in the profession, he has a name to reckon with. Of course as of now the matter is only His words against hers but media should behave very cautiously while adding a thousand words in the name of editorial content when the basic complaint is not even of 100 words. An independent media should not be interfered with, not even by the Courts unless the situation demands.

Justice Singh also laid emphasis that there should be a time limit before which the girl should initiate the complaint. I concur totally. Waiting for more than a year to file a complaint does not help the case, the cause and the parties involved. If her allegations are true, by sitting over the matter for a considerable length of time, the intern has not really helped herself that much. I understand it required a great deal of courage on her part to take on a Judge in a legal battle even when her own career has not commenced. It is also a sorry state of affairs since the Supreme Court itself had not been able to appoint a committee in terms of the Vishaka guidelines which the Court laid down more than a decade ago. Maybe such a mechanism, if was existing and working, would have expedited the matter, who knows.

Legal battles are supposed to be fought in the Courtroom with evidence, even though circumstantial in a given case. News channels / papers can never be allowed to decide these battles.

Let us see how the legal proceedings in the Supreme Court and the Delhi High Court shape up in time to come.

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Resolving IP Infringement Lawsuits: Swifter.

Contrary to the popular belief, intellectual property actions can be settled faster among the category of usual civil action, in comparison to suit for specific performance, partition of properties, etc. Though I generally file action on behalf of the Plaintiff, so the present post might prove as counter productive since I’m giving a Defendant’s perspective in light of precedents.

Whenever a Plaintiff is approaching the Court in an IP lawsuit, the sine qua non relief prayed is that the Defendant should immediately cease from the counterfeiting activities. Incidental relief, thereafter, are delivery of infringing goods and paying damages to the Plaintiff.

After the recent increase in the Court Fees in Delhi, usual practice is not to seek damages but rendition of accounts of the Defendant. Though I have my separate reservation on that front. Nonetheless, since the focus is shifting from damages, job of a Plaintiff to seek speedy disposal only becomes easier and swift.

IP matters do not require the whole nine yards of a garden variety civil litigation. With minimal evidence, maximum result is possible. In 2006, His Honour Sanjay Kishan Kaul paved the way of culminating an IP lawsuit faster in cases where Defendant is willfully abstaining from the proceedings. In the Glaxo matter, His Honour held that where the Defendant is not joining the proceedings, no useful purpose can be served by asking the Plaintiff to bring witness before the Court for deposition. His Honour, under Order 19 Rule 2 sub-rule 2 of the Code of Civil procedure, not only exempted the witnesses from appearing personally, but also decreed the lawsuit then and there on the basis of the material before the Court.

His Honour S. N. Dhingra too followed the Glaxo ruling in Eco Labs and dispensed with the appearance of the witness of the Plaintiff in similar circumstances. Meaning thereby, in matters where the Plaintiff’s officials are not in Delhi generally, or even out of the Country, they need not come to the Court and can seek exemption.

However, these were the cases where the Defendant abstained from joining the proceedings. In some IP cases where the Defendant has put in his appearance, the matter can also culminate soon, in fact sooner, if the Defendant chooses not to contest the matter and suffers the decree with prejudice at the very first opportunity.

The landmark precedent is, again, by His Honour Kaul in Nestle vs Satya Prakash Maheshwari. The last order disposing off the lawsuit is here. In the matter, His Honour faced a situation where Nestle had instituted a lawsuit against infringing wrappers similar to its flagship ready-to-cook noodle brand Maggi. When the lawsuit came up for hearing for the first time, the High Court also allowed Plaintiff’s prayer for appointing Court Commissioners to conduct search and seizure action in the premises of the Defendants.

At the inception, the Defendants chose not to contest the proceedings and offered to suffer a decree of permanent injunction provided Nestle gave up relief of damages against the Defendant. Nestle was, obviously, not interested in giving up claim for damages. Counsel for the Defendant relied upon Section 135(3) of the Trade Marks Act to strengthen his submissions. The provision provides that when the Defendant has chosen to cease his activities in question, then the Court cannot pass any relief for damages, other than nominal damages in Court’s discretion.

Relying upon the provision, His Honour Kaul decreed the suit in favour of Nestle without any damages awarded. Nestle, understandably, took the matter in the Appeal Court before the Division Bench. Their Honours, comprising Mudgal and Shali, with one of the best counsel for IP matters, Mr. Saikrishna Rajgopal as Amicus deliberated on the matter at length.

The Appeals Court, in the comprehensive ruling, not only upheld His Honour Kaul’s judgment, but also cleared the way for the Defendants who want to avoid the rigmarole of long drawn out litigation, most probably resulting in injunction and damages.

This speedier resolution is more favourable to the Plaintiff than the Defendant in a more practical way. By and large, Delhi High Court does not award massive damages after a matter reaches culmination. Settling much earlier and for a token damage can save the Plaintiff a lot of cost and paperwork.

Frankly, a speedier disposal helps the counsels more than the parties. Once an ex-parte interim injunction is in favour of the Plaintiff, if an IP suit gets settled after first few hearings, the legal team can focus on other pressing matters.

Maybe because I had my training as a Mediator during my LL. M. that is why I have more resolution oriented approach towards litigation rather than prolonging it.

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Novartis’s Gleevec: Supreme Court Brings Patent Law To New Heights.

The least popular branch of intellectual property (IP) law–patents–got the most coverage in media world over, thanks to the Supreme Court’s verdict today in Novartis patent litigation for Gleevec application.

The judgement of Supreme Court can be accessed here: Gleevec (pdf) (HTML)

Brief facts:

Novartis applied for a patent in India for a anti cancer drug by the name of Gleevec. Even before the application was taken up for consideration, it attracted 5 pre-grant opposition proceedings from Cancer Patients Aid, Natco, Ranbaxy, Cipla & Hetro Drugs. On December 15, 2005, Assistant Controller of Patents heard all 5 proceedings together and rejected patent application by Novartis.

Controller held that the invention claimed by the appellant was anticipated by prior publication, i.e., the Zimmermann patent; that the invention claimed by the appellant was obvious to a person skilled in the art in view of the disclosure provided in the Zimmermann patent specifications; and further that the patentability of the alleged invention was disallowed by section 3(d) of the Act

Novartis challenged the Controller’s order before the Madras High Court in 5 writ petition and filed 2 separate writ petitions challenging constitutionality of Section 3(d) of the Patents Act. Once the High Court dismissed the writ petitions challenging 3(d), Novartis did not prefer any appeal to the Supreme Court. The other bunch of 5 petitions were transferred to Intellectual Property Appellate Board (IPAB) for adjudication.

IPAB reversed Controller’s decisions in all 5 petitions to the extent that Novartis invention satisfied the tests of novelty and non-obviousness. The IPAB, however, held that the patentability of the subject product was hit by section 3(d) of the Act. In an unprecedented manner, and with the Consent of the parties to save considerable time, Their Honours in the Supreme Court decided to hear the appales against the IPAB order though the Appellate Court was Madras High Court.

The 5 Objectors stated before the SC that the TRIPS agreement has sufficient flexibility for Member States to control Patent rights to guard against adverse impact on public health.

The SC also noted that amended portion of section 3(d) clearly sets up a second tier of qualifying standards for chemical substances / pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds.

Furthermore, the Bench also noted that the Zimmermann patent, Novartis applied for, and in several cases obtained, patent in the US not only for the beta and alpha crystalline forms of Imatinib Mesylate, but also for Imatinib in a number of different forms. Novartis, however, never asked for any patent for Imatinib Mesylate in non-crystalline form, for the simple reason that it had always maintained that Imatinib Mesylate is fully a part of the Zimmermann patent and does not call for any separate patent.

This factor also played a crucial role before the Bench since Novartis maintained in the Indian application that Gleevec was a new substance as applied took a contrary position to earlier patent applications and even while sending a cease and desist letter to Natco.

When Novartis cited foreign rulings in support of the arguments, the Bench held as following:

“In this country the law of patent, after the introduction of product patent for all kinds of substances in the patent regime, is in its infancy. We certainly do not wish the law of patent in this country to develop on lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skillful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent.”

Finally, in paragraph 164 of the judgement, SC has stated that while going through the Zimmermann patent one cannot but feel that it relates to some very serious, important and valuable researches. The subject patent application (Gleevec), on the other hand, appears to be a loosely assembled, cut-and-paste job, drawing heavily upon the Zimmermann patent.

Charity programme by Novartis:

Though a lot has been written & spoken about the charity programme by Novartis, few points are very important to note. IPAB in its order notes that : –

“We are fully conscious of the Appellant’s (Novartis’s) benevolent GIPAP program for free distribution of GLEEVEC to certain cancer patients. But as per information furnished in its written counter–argument by R 3 that when the Appellant was holding the right as Exclusive Marketing Rights on GLEEVEC it used to charge Rs.1,20,000/- per month for a required dose of the drug from a cancer patient, not disputed by the Appellant, which in our view is too un-affordable to the poor cancer patients in India. Thus, we also observe that a grant of product patent on this application can create a havoc to the lives of poor people and their families affected with the cancer for which this drug is effective.

Furthermore, Supreme Court in the order also notes that when asking Novartis about the massive pricing of the drugs, it stated to run a huge charity programme for free distribution of drugs as well to the needy. However, when the Supreme Court questioned if Novartis can abolish the charity programme and rework on the pricing, Novartis could not reply satisfactorily.

Point being, the Court were aware of the Charity argument of Novartis but the price difference between a monthly dosage of 120 thousands and 8 thousands was astonishing.

TRIPS agreement versus local laws:

The most crucial aspect which weighed in before Their Honours at the Bench was the contribution which the manufacturers of Indian generic industry had made world over to supply life saving drugs to poor countries. Two letters which the Bench quoted are relevant as well. One was dated 17 December, 2004, from Director, Dept of AIDS at WHO writing to Union Health Minister stating that WHO is aware that TRIPS compliance was important but also is most important that India continues to export cheaper medicines to not only Member States but also countries which are poor. Some countries which WHO mentioned where India is a massive supplier of cheap anti cancer life saving generic drugs were Ghana, Lesotho, Malawi, Namibia, Bangladesh, etc.

Another letter was from UNAIDS asking India to make sure that the Patent regime after complying with TRIPS does not restrict / undermine India’s position as a leader in supplying affordable life saving drugs to countries that do not have manufacturing capacity to manufacture such drugs.

It is, therefore, a fallacy to say that Indian Patent Act is not in consonance with the requirements under TRIPS or that Courts were not mindful of the R&D and charities done by Novartis. However, at the end of the day, courts will have to interpret provisions of Patent Act keeping India as a jurisdiction because Patent provisions, unlike trademarks and copyright, are not enforceable internationally.

In Gleevec ruling, SC has displayed as excellent and pragmatic approach in dealing with one of the most complicated branches of law. The judgement, apart from being excellently sound in law, is written in such an elaborate manner that any person with even basic knowledge about patent law can understand and appreciate it.

After a long time, an excellent IP ruling from  the Supreme Court.

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