IPAB sets aside the Pre-Grant Opposition order against “ABRAXIS”, accepts violation of principle of
The Intellectual Property Appellate Board (IPAB) in its decision dated January 20, 2014 while accepting violation of principle of natural justice by Assistant Controller, ordered to set aside the Pre-Grant Opposition order against “ABRAXIS” and remanded the matter to the Assistant Controller of Patent for disposing off the same within three months after according an opportunity of hearing to both the parties. The present Appeal was filed by “Abraxis BioScience LLC” (Appellant) challenging the order of the learned Assistant Controller of Patents and Designs dated 28/4/2009 rejecting the patent application preferred by the appellant seeking patent for their invention “composition and method for delivery of pharmacological agents” in India under the Indian Patents Act, 1970 under the application number 2899/DELNP/2005. The Appellant argued that the impugned order of the Assistant Controller was in violation of principle of natural justice as the same was passed without giving them any opportunity of being heard in spite of making specific requests to that effect. The Appellant further argued that the Assistant Controller had suo-moto taken additional ground of opposition of “insufficiency” which was neither pleaded nor even argued during the time of the hearing by the Opponent i.e M/S Natco Pharma Ltd (Respondent in the present Appeal). On the other hand, the Respondent in the present matter argued that the appellant has participated in the hearing and there is no question of any deprivation of opportunity to the appellant. However, the IPAB after perusing the impugned order and giving careful and thoughtful consideration to the rival contentions put forward by either side held that it is an undisputed fact that the Assistant Controller of Patent has not given opportunity of hearing to the appellant as contemplated under the Patents Act. The IPAB sternly criticized the action of the Assistant Controller and opined that “we have no hesitation to hold that the learned Assistant Controller has passed the impugned order in flagrant violation of the Principle of Natural Justice”. Further, the IPAB while reading the relevant portion of the impugned order, pointed out that even the Assistant Controller was well aware of affording opportunity of hearing to the appellant/applicant as well as to the opponent in the present matter, yet it failed to do so. Regarding the additional ground of opposition taken by the Assistant Controller, the IPAB held that since the Respondent had neither raised nor pleaded the additional ground of opposition of “insufficiency”, any finding to that effect in the impugned order is unsustainable in law. Hence the present Appeal was decided in favour of the Appellant and the impugned order of the Assistant Controller of Patent rejecting the Appellant’s patent application for their invention was set aside. Consequently, the matter was remanded to the Assistant Controller for fresh consideration after giving both the parties an opportunity of being heard.