Thursday, December 4, 2008

Valganciclovir for Re-examination

My apologies regarding the conclusion of the news….

Actually, Madras High Court has ordered a re-examination of the Patent Application but has specifically stated that the Patent Office should consider only the Pre-grant Opposition filed by Lawyers’ Collective while re-examination and no other opposition.

We had news that Pharma companies like Ranbaxy, Cipla etc. had already filed the Post-Grant Opposition in the said matter. Lets see what happens to these Opposition. It seems that these Opposition will be kept pending till the decision of the this re-examination.

Wednesday, December 3, 2008

News Flash

Valganciclovir Patent Revoked?

According to our sources, Madras High Court has revoked the Patent of Valganiclovir (Roche) in the appeal filed by Lawyer’s Collective recently (We have some doubts on that and We will confirm the news) but that’s certain that Madras High has decided in favour of Lawyer’s Collective in the appeal filed by them against the order of Patent Office granting the Patent without hearing the Pre-Grant Opposition filed by them.
More Updates to follow……………………..

Tuesday, August 12, 2008

Doctrine of Equivalents and Patent of Addition – Court stated obvious things

Mumbai High Court recently discussed Doctrine of Equivalents and Patents of Addition in the case of Ravi Kamal Bali v kala Tech. This is a case of Patent Infringement relating to Plaintiff’s patent bearing No. 162675 and patent of addition No. 178879. Meanwhile, the defendants have also filed an application of patent of addition. The Patents relates to locking system used in container.
In June 2004 the plaintiff come across similar products in the market and found that one of its former employees helped the defendant in making these products. After Plaintiff issued cease and desist notice, the Defendants stopped the products.
Plaintiff while taking up the case of infringement, argued that in the present case, Doctrine of Equivalents should be applicable (According to us, this might be one of the first cases in India, where Doctrine of Equivalents is used). According to Doctrine of Equivalents, a product infringes a claim of patent if it “performs substantially the same function in substantially the same way to obtain the same result”. Defendants argue that even the products of defendants held to perform the same function, to obtain the same result, did not function in substantially the same way as the Plaintiffs device. The Hon’ble High Court then compared the products of both the parties and decided that both products work/function on same principle and the difference is not the valid difference to bring the products out of scope of “Doctrine of Equivalents”. Infringement held
While arguing on ‘Patent of Addition’ Defendants argue that Patent of addition can only be granted if it has an inventive step over the principle Patent. But in our understanding, the contention of Defendants is not correct in view of section 56. Section 56 clearly states that no patent of addition will be revoked only on the ground that it is obvious in light of principle patent but the Court did not opined on this argument. Hon’ble High Court studied the provisions of “Patent of Addition” and stated that the Patentee only has the right of make an application for “patent of addition” and nobody else has got that right. In case of contrary, the position under section 55 would be futile in that case. An obvious understanding

Thursday, May 22, 2008

Presumption of Validity of Patent – No – New Argument

  • Gujarat High Court refused to grant the injunction while deciding that the compensation to be an adequate remedy in Patent infringement case at the Injunction stage. Hon’ble Divisional Bench of Gujarat High Court upheld the judgment of Ld. Single Judge that held that compensation would be an adequate remedy and no injunction would be granted where there is serious challenge to validity of Patent in revocation petition. The court held that “The Court finds some substance at this stage in the submission that no interim injunction protecting the patent and restraining the defendant from continuing the manufacturing and marketing of products in dispute would be granted if the patent is new, its validity has not been upheld in any judicial proceedings and serious controversy raised regarding its validity either by filing an application in revocation or claiming revocation and counter claim in the suit.”
  • Although Indian Supreme Court in the case of Bishwanth Prasad Radhey Shyam V/s. Hindustan Metal . Industries, 1982 SC 1444 held that there is no presumption of validity of patent but this question always creeps in the cases. This Court also looked into this point. Even though the Court did not changed the precedents and decided that there is no presumption of validity under section 13(4) of the Patents Act but Court pointed out that a separate provision has been provided in Section 113 (1) authorizing the High Court in such proceedings as the present matter to provide a certificate of validity to a claim in a patent. Therefore, if the High Court finds that in such a matter, the claim is not valid, the patent should be revoked.
  • This is the first time any Court has taken this argument while deciding on the point but now one thing is clear that all the High Courts have adopted the view i.e. there is no presumption of validity of patent under the Act. At least something is consistent in Indian Patent law.

Wednesday, May 21, 2008

Government to form National Institute of Intellectual Property Management

Recently WIPO published its report that India lags behind most of the nations in filing the patent applications. This report has prompted the government to work on a National Institute of Intellectual Property Management to handle training, education, research and think-tank functions in intellectual-property rights. Economic Times reports here
This Report clearly indicates that India is well behind the Asian countries like China, Korea, Japan. PCT filings in 2007 by Indian nationals stand at paltry 686 whereas the applications field by Chinese nationals is around 5456.
Its well know that there is no dearth of intellectuals in India then what is the basic reason for such filing numbers. Whether the people do not have the training or information about the PCT filing or what? One way is that Indian law should educate their clients about the benefits of PCT filing

Tuesday, May 13, 2008

TVS-Bajaj Judgment - Critique

I have gone through the tvs-bajaj judgment recently. I found one thing interesting in the judgment that there is not even a paragraph on “how the infringement of patent is determined”? Is this a judgment u expect in the patent infringement case? I don’t know.
I do not agree with interpretation of claims done by court and argued by Bajaj. Isn’t the argument of bajaj that the invention is for twin spark plugs in small bore engine for efficient burning of lean air-fuel mixture goes against section 10 (4) (c) of the patents act? According to me the scope of the patent is determined by the claims i.e. each and every element of the claim is the limitation of the patent and scope is not determined by the mere statements of the Patentee.
Any comments

Good judgment but bad reasoning

Dhanpat Seth v M/s Nil Kamal Plastic Crates Ltd. AIR 2008 HP (judgment dated 20.09.2007) http://hphighcourt.nic.in/inetjudord/judgements/OSA82006.pdf

Himachal Pradesh (HP) High Court recently refused to grant the interim injunction because the invention was known since ages (i.e. traditional knowledge). It was correct to upheld the single Judge finding that Patent law and Trademarks are two different legal regime and the principles of one cannot be applied to another. According to me, in this beautifully crafted judgment there are two flaws:

  • The Hon’ble Judges visually compared the products and stated that A visual comparison of the three items prima facie establishes that the articles manufactured by the plaintiffs and the defendant are virtual copies of the traditional Kilta. In my opinion, this is not correct approach as while judging the patentability or infringement, one must look the claims of the Patent and not the product made out of that Patent.
  • Hon’ble Court relied on American Cyanamid v Ethicon [1975] 1 All E.R 504 for the principles of interim injunction but this judgment is not a good law in India as it has been diluted by Supreme Court in Colgate Palmolive and Gujarat Bottling cases.