Natco Pharma Limited vs Union Of India & Ors

CIVIL APPEAL NOS. 6004-6018 OF 2008 (Arising out of S.L.P.(C) Nos.1323-1337/2008)

Natco Pharma Limited ...Appellant(s)

Versus

Union of India & Ors. ...Respondent(s)

ORDER

Leave granted.

A piquant situation has arisen in this case on account of absence of

Technical Member in the Intellectual Property Appellant Board (IPAB) constituted

under the provisions of Section 116 of the Patents Act, 1970.

On 2nd April, 2007, Central Government appointed S.Chandrasekaran as

Technical Member (Patent) of IPAB vide notification of even date. On 3rd April,

2007, notification was issued notifying 2nd April, 2007 as the date for transfer of

appeals pending before any High Court to IPAB. The appeals were transferred to

the IPAB by the High Court vide its order dated 4th April, 2007.

On 16th June, 2007, Misc. Petition Nos.1 and 2 of 2007 were filed by

respondent No.4 herein before IPAB praying for the appointment of another

Technical Member in place of S.Chandrasekaran on the ground that the said

Member had earlier filed an affidavit in the matter taking a particular position in the

dispute which has a direct bearing on the case in hand.

It is under these peculiar facts and circumstances of the case and,

1 particularly, in view of the fact that the controversy involved before IPAB is

concerning crystal modification of a N-Phenyl-2-Pyrimidineamine derivative and

since the dispute is regarding patentability of the process as well as the product that

we are of the view that such complicated disputes need to be resolved by IPAB which

must have a Technical Member in it.

In the above facts and circumstances of this case only and without making

our order a precedent for future cases, we called for a panel/list of Controllers duly

qualified under Section 116 of the Patents Act, as amended by the Patents

(Amendment) Act, 2006.

From that list submitted to us, we have opted for the name of

Dr.P.C.Chakraborti, Deputy Controller of Patents & Designs, who holds post-

graduate degree of M.Sc.(Chemistry) as well as Ph.D.

We, accordingly, direct that all preliminaries will be completed by the

parties in the month of October, 2008 and the IPAB duly reconstituted under our

orders, which would include Dr. P.C.Chakraborti, would hear and decide the

pending Appeal Nos.TA/001/2007/PT/CH to TA/005/2007/PT/CH preferably in the

month of November, 2008. We direct the IPAB to list the above Appeals before it for

directions on 3rd November, 2008. The matter will be heard and disposed of on day-

to-day basis.

As a special case, Dr.P.C.Chakraborti will continue to be the Member of the

said Board till the hearing and final disposal of the said appeals. He will be the

Member of the IPAB only for the said Appeals. He will be paid remuneration

payable to the Technical Member of IPAB, namely, salary of Rs.86,286/- per month

with other perquisites as mentioned in the annexure to this order. This annexure has

2 been given to us by the Union of India. It is also made clear that Dr.P.C.Chakraborti,

who is presently Deputy Controller of Patents and Designs, will not be entitled to

draw his salary for the aforestated period as Deputy Controller of Patents and

Designs but, he would be entitled to protection of his seniority and other incidental

benefits.

We hope that the Board would preferably dispose of the Appeals within one

month, if possible, from the date of the commencement of hearing.

Both sides have accepted the name of Dr.P.C.Chakraborti to act as

Technical Member in the above Appeals.

Civil Appeals are disposed of accordingly, with no

order as to costs.

...................J. (S.H. KAPADIA)

...................J. (B. SUDERSHAN REDDY) New Delhi, October 01, 2008.

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ITEM NO.1 COURT NO.5 SECTION XII

SUPREME COURT OF INDIA RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).1323-1337/2008

(From the judgement and order dated 13/11/2007 in WP Nos. 26676 to 26680 of 2007 & MP Nos.1 & 2 of 2007 of the HIGH COURT OF MADRAS)

NATCO PHARMA LIMITED Petitioner(s) VERSUS

UNION OF INDIA & ORS. Respondent(s)

(With prayer for interim relief and office report)

Date: 01/10/2008 These Petitions were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE S.H. KAPADIA HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

For Petitioner(s) Ms. Rajeshwari Hariharan, Adv.

Mr. S. Hariharan, Adv.

For Respondent(s) No.4: Mr. Shanti Bhushan, Sr.Adv. Ms. Arpita Sawhney, Adv. Mr. Sanjay Kumar, Adv. Mr. Sukhdev, Adv. Ms. Meenakshi Arora, Adv.

R.Nos.1-3: Mr. B.S. Chahar, Sr.Adv. Mrs. Anita Sahani, Adv. Mrs. Anil Katiyar, Adv. Mr. D.S. Mahra, Adv.

R.No.8: Ms. Rukhsana Choudhury, Adv. Ms. S. Pratibha, Adv. Ms. Sivangi Roy, Adv.

UPON hearing counsel the Court made the following ORDER

4 Leave granted.

Civil Appeal are disposed of with no order as to costs, in terms of the signed order.

(N. ANNAPURNA) (VIJAY DHAWAN) COURT MASTER COURT MASTER

(Signed order is placed on file)

Note: Copy of the order be given by Friday.

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