Novartis Update 15.02.07

Today, the Madras High Court heard the Novartis matter on certain preliminary issues. Novartis India and Novartis AG had filed applications to amend their petitions to ask for a declaration from the Court that section 3(d) of the Indian Patent Act was not in compliance with TRIPS and that it violates Article 14 of the Indian Constitution, which prohibits discriminatory and arbitrary state action. The CPAA and the generic companies had opposed the applications to amend. They did so on the ground that Novartis had not specifically claimed a violation of Article 14 in the original petitions. Also, the CPAA and the generic companies claimed that as far as TRIPS non-compliance was concerned, a domestic court did not have the jurisdiction to decide the matter.

The Court ultimately allowed the amendment, but ruled that all of the objections mentioned above would be noted and heard during the hearing.

The parties were also given the opportunity to file affidavits on Novartis’ amended petition challenging 3(d) on the ground of Article 14.

As the members of the Madras Advocates Association had abstained from work today as a result of an altercation between a senior lawyer and a senior police officer, the hearing was adjourned until tomorrow. To be decided tomorrow is another preliminary issue of whether Novartis may convert its challenge to the Patent Controller’s order from a writ petition to an appeal. This determination will have a bearing on the scope of review allowed by the High Court. While a review under a writ petition is limited to clear mistakes in the law, the review available under an “appeal” is broader, and the Court may look into mistakes in both fact and law. After this issue is decided, the arguments regarding Novartis’ challenge to section 3(d) will begin.