Madras High Court’s decision: Setting the right trend towards ending frivolous patent litigations

In a move that may have notable positive ramifications on the administrative procedures adopted by authorities in proceedings before them especially with respect to the patent procedures in India, the Madras High Court, in an Order dated January 10, 2019, dismissed a writ petition impugning an order passed by the Intellectual Property Appellate Board (IPAB) which upheld the validity of a patent granted to Kibow for its product “Renadyl”, a probiotic supplement (composition) that enhances kidney function.

Kibow Biotech Inc., a leading international biotechnology company had initiated a suit against La Renon Health Care Pvt. Ltd., an Indian pharmaceutical company for infringement of their patent by the latter’s product “CUDO”. Subsequently, La Renon initiated revocation proceedings before the IPAB against Kibow, for both its product (composition) and process patent.

While the IPAB revoked the process patent granted to Kibow, the validity of its product patent was upheld. Aggrieved by the said order, La Renon preferred a writ petition against IPAB’s decision before the Madras High Court.

La Renon (hereinafter referred to as the Petitioner) contented that the patent granted to Kibow (hereinafter referred to as the Respondent) did not disclose any technical advancement over existing knowledge or prior art and was obvious to a person skilled in the art, and hence liable to be revoked under Section 64(1) of the Patents Act, 1970 (hereinafter referred to as the Act).

The Respondent however averred that the Petitioner was not an “interested person” for the purpose of proceedings under the Act, and the petition should therefore be dismissed. The Respondent further asserted the validity of the patent granted to it.

The Division Bench of the Madras High Court, comprising Justice R. Subbiah and Justice C. Saravanan analysed the scope of the term “interested person” under the Act and held that the Petitioner was an “interested person” within its purview.

It accentuated that the scope of review in a writ petition was limited and while exercising the power of judicial review under Article 226 of the Constitution of India, the proceedings cannot be converted into an appeal. It is to be kept in mind that the judicial review is directed not against the decision but is confined to the examination of the decision making process. The Hon’ble High Court held that the procedure adopted by IPAB was not erroneous, and the writ petition was hence dismissed.

This decision of the Hon’ble High Court comes as an assurance that the courts are conscious of their powers and responsibilities and act within the boundaries set forth for them, thereby reinforcing the supremacy of law laid down by the Constitution of India. By not going into the merits but confining the proceedings to the examination of the procedure adopted by IPAB while deciding the case, the Court has also aimed to project India as a patent-friendly nation which may provide incentive to foreign applicants to enter the Indian market with their products as they can rest assured that the Indian Patent System is not prejudiced/biased towards its own players.