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Presented below are excerpts
from a net blog by Mr Shamnad Basheer, who was till
recently the Frank H Marks visiting Associate Professor
of Intellectual Property Law at the George Washington
University Law School, Washington, USA. He was formerly
with Anand and Anand, an intellectual property law firm
in New Delhi.
Extremely well researched judgment …..We finally have an
Indian judgment that refers explicitly to the
“Windsurfer” test on obviousness - long due, as Indian
courts are often prone to citing British case law-and
one always wondered why Windsurfer was left out.
Importantly, the court castigates the patent office for
not rendering a reasoned decision at the pre-grant
opposition stage (recollect that Natco had filed a
pre-grant opposition and this was decided by the patent
office in favour of Roche). In particular, the court
takes the patent office to task for relying blindly on
the "suggestion, motivation, teaching" test in the US -
a test deployed by the Court of Appeals for the Federal
circuit in the US for a great number of years and one
which owe red the bar for patentability considerably.
The US Supreme Court came down heavily against a
formalistic application of this test in KSR vs Teleflex.
Little wonder then that Roche's argument that the
pre-grant opposition would render the patent immune from
attacks on validity did not sway the court much. The
court does not deal explicitly with whether or not Cipla
ought to have availed of the post grant opposition
mechanism (instead of resorting to infringement and then
counterclaiming validity). It seems to have agreed with
Cipla's argument that so long as the patents act
independently recognises the right to ask for a
revocation at any stage (and counterclaim invalidity),
the lack of a post-grant opposition by the “revoker” is
not critical.
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