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Patent Litigation in India: Pravin Anand

This document summarizes the challenges and changes to patent litigation in India. It discusses three main challenges: 1) weaknesses in India's patent law, 2) aggressive generic drug companies, and 3) most patents being filed for chemistry rather than IT. It then outlines changes making the process more streamlined, such as faster resolution times. Strategies for patent holders are suggested, such as designing litigation before product launch or invalidating patents. Several key patent cases expected to conclude in 2011 are also mentioned.

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Atif Imam
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26 views

Patent Litigation in India: Pravin Anand

This document summarizes the challenges and changes to patent litigation in India. It discusses three main challenges: 1) weaknesses in India's patent law, 2) aggressive generic drug companies, and 3) most patents being filed for chemistry rather than IT. It then outlines changes making the process more streamlined, such as faster resolution times. Strategies for patent holders are suggested, such as designing litigation before product launch or invalidating patents. Several key patent cases expected to conclude in 2011 are also mentioned.

Uploaded by

Atif Imam
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPT, PDF, TXT or read online on Scribd
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Patent Litigation in India

Pravin Anand
Anand And Anand

MIP International Patent Forum 2011 April 5, 2011, London

The Challenges
First, a weak Patent Law Pre and post grant oppositions (Span case) Rigid deadlines (4) Section 3(d) - Novartis Section 8 - Chemtura Working requirements , Compulsory licence Section 39

The Challenges
Second, Generics, Copyleft, open-source aggressive: Parliamentary Forums Judge training Press/Blogs No counter measures by innovators

The Challenges
Third, top ten filers are chemistry patents World trend: top filers are IT companies Being an IT Power, ironic that Chemistry leads Generics very patent savvy..

The Changes
2005 Patent Amendments CPC Streamlining Processes Supreme Court 4 month orders (20 in 2010) Delhi High Court 70% IP cases Docket Management
Old order 5 to 10 years Today possibly 6 months to one year

e Court

Remedies Revolution
Ex parte injunctions before launch status quo Expedited trial preferred Anton Piller, Mareva Injunctions John Doe Orders Damages : Punitive / Exemplary (65 orders)

Time Inc vs. Lokesh Srivastava


Red Border contributed to finding of dishonesty Punitive/ exemplary damages granted for the first time

Strategies
Design action before launch
Issues : Document : Witness analysis cannot miss the document window in fast track Expert evidence of great value ( average 2 witnesses per side, 6 hours cross, 150 ques)

Emphasis on original documents


Section 65 Secondary evidence Section 65 B Internet downloads

Strategies
Invalidation before IPAB or counter claim before High Court
IPAB slow High Court Fast May avoid cease & desist notice

Amendments allowed - infringement action or after invalidation

Strategies
Judges Rely on foreign case law favorable decisions elsewhere help gestalt perception judges often, a third force Generics look at prosecution histories all over EPO highly respected Suppression big cause for failure - overstate

Strategies
Demystify the science Use the defendants patent applications for estoppel arguments Highlight Public Interest, pricing, patient access, investment in drug development Avoid Interim move to Fast track

Cases
Novartis Gleevec Supreme Court (19th April) Roche vs Cipla final Arguments (April) GSK vs Union of India writ quashed publication United Phosphorus pesticide formulation suit decreed 34 days 20 other suits of BMS, Sanofi Aventis, Scherring Plough etc likely to conclude in 2011

Conclusions
Despite the weak legislation, major positive changes Bulk decisions in 2011 will show the long lasting trends Other high courts may be positively impacted time will tell..

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