The Madras High Court has dismissed a petition filed by the Swiss pharmaceutical giant Novartis AG, challenging the constitutional validity of the Section 3 (d) of the Patents (amendment) Act 2005, under which its patent application for beta crystalline form of imatinib mesylate, was rejected.
Novartis had argued, inter alia, that the concerned provision, which precluded patents for mere new use of a known substance, contravened the international agreements on intellectual property at the WTO.
Dismissing it, a division bench comprising Justice R Balasubramanian and Justice Prabha Sridevan held that the Court cannot strike down an Act on he ground that it is not in accordance with trade related aspects of intellectual property rights (TRIPS) agreement or not.
The Bench stated that the international treaties and agreements were essentially in the nature of a contract, the Bench said, adding that the TRIPS Agreement provided for a comprehensive dispute settlement mechanism, which was binding on its member-States. The verdict noted:
“We see no reason at all as to why the petitioner, which itself is a part of that member-State, should not be directed to have the dispute resolved under the dispute settlement mechanism…We see no reason at all as to why we must disregard it…”
The Bench also dismissed the contention that the impugned Section conferred uncanalised and arbitrary discretionary powers on the Patents Controller. It averred:
“The argument that the amended Section must be held to be bad in law since, for want of guidelines, it gives scope to the statutory authority to exercise its power arbitrarily, has to be necessarily rejected.
We find that there are in-built materials in the amended Section and the Explanation itself, which would control/guide the discretion to be exercised by the statutory authority. In other words, the statutory authority would be definitely guided by the materials placed before it for arriving at a conclusion.”
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