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60 Pages·2017·1.45 MB·English

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IN. THE HIGH CQURT OF DELHI AT NEW DELHI
(Extraordinary Writ Jurisdiction)
or
lVRI'T PETITIOI'<J (C) NO. LV c~ D OF 2015
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IN THE 1\IIATTER OF A PUBLIC INTEREST LITIGATION
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SBAiviNAD BASHEER PETITIONER
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UNION OF INDIA & OTHERS RESPONDENTS
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[SEE INDEX INSIDE]
N. SAIVINOD
D-131 (Basement)
Panchsheel Enclave
New Delhi-:- 110 017
Phone: [phone] Email: [email protected]
IN THE;, HIGH COURT OF DELHI AT NEW DELHI
· (Extraordinary Writ Jurisdiction)
WRIT PETITION (C) NO. OF 2015
IN THE MATTER OF A PUBLIC INTEREST LITIGATION
SHAMNAD BASHEER PETITIONER
VERSUS
UNION OF INDIA & OTHERS RESPONDENTS
INDEX
S.NO P ARTICULAR(S) PAGE NO
1. Court Fees A
2. Urgent Application B
,,
,.
c ,.
3. Notice of Motion . r
I
f,
t
4. Synopsis & List of Dates D-H ,I .
,I.·
'
f-.
5. Memo of Parties I L
'
''
h
,'.
6. Civil Writ Petition along with affidavit 1-43 ,f.
L
'
7. APPENDIX-A: A compendium of relevant
44-50 f
provisions of Patents Act, 1970 & Rules t
!
8. APPENDIX-B: Copy of blank FORM-27 as !t
51
per Schedule II of Patents Rules, 2003
9. ANNEXURE P-1: List of public spirited
activities and achievements of the Petitioner 52-61
ANNEXURE P-2: True copy of SpicyiP
10.
Report on 'The 'Non-Working' of the Patent
62-84
Office 'Working Requirement!' (Aprit 2011)
11. ·ANNEXURE P-3: Snapshot of online
database containing information relating to 85
working of patents as on 11.05.2015
12. ANNEXURE P-4: A comprehensive list of
86-94
patents surveyed by the Petitioner
13. ANNEXURE P-5: Copy of FORM 10CCE as
prescribed under Income Tax Act, 1961 & 95-96
Rules thereunder
14. ANNEXURE P-6 (Colly)
(i) True copy of Public Notice (Ref. No. 97
CG/PG/2009/179) dated 24.12.2009
issued by Respondent authorities
(ii) True copy of Public Notice (Ref. No.
CG/PG/2013/77) dated 12.02.2013 98
issued by Respondent authorities
(iii) True copy of Public Notice (Ref. No.
CG/PublicNotice/2015/95) dated
99
21.01.2015 issued by Respondent
authorities
15. ANNEXURE P-7: Relevant excerpts from the
Annual Report of the Controller General of
100-107
Patents, Designs, Trademarks and
Geographical Indications (2012-13)
16. ANNEXURE P-8: True copy of FORM-27 _ t
108 123
filings submitted by Ericsson Inc.
17. ANNEXURE P-9: True copy of FORM-27
filings submitted by Bayer Corporation 124-132
relating to Patent No. IN21578
18. ANNEXURE P-10: An illustrative list of
callous and defective FORM-27 filings by 133~- 134
patentees
19. ANNEXURE P-11: Summary of findings of
FORM-27 investigations conducted by the 135 -144
Petitioner
20. ANNEXURE P-12 (Colly)
145
(i) True copy of the RTI application dated
06.03.2014
. (ii) True copy of the reply from Respondent
146-147
i
authorities dated 12.03.2014
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21. ANNEXURE P-13: Snapshot of the FORM-27
148
e-filing facility as on 11.04.2015
22. ANNEXURE P-14 (Colly)
(1) True copy of RTI application filed by
Petitioner before IPO, Mumbai dated 149-150
10.12.2013
(ii) True copy of RTI application filed by
Petitioner before IPO, New Delhi dated 151-152
10.12.2013
(iii) True copy of RTI application filed by
Petitioner before IPO, Chennai dated 153-154
10.12.2013
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(iv) True copy of RTI application filed by
Petitioner before IPO, Kolkata dated 155-156
10.12.2013
(v) True copy of the reply of the CPIO of
157
IPO, Mumbai dated 18.12.2013
(vi) True copy of the reply of the CPIO of
158-159
IPO, Chennai dated 09.01.2014
(vii) True copy of the reply of the CPIO of
160-161
IPO, Kolkata dated 08.01.2014
····; .. '
23. ANNEXURE P-15 (Colly)
162-163
...,' (i) True copy of RTI application dated
10.02.2014
(ii) True copy of the reply from Respondent
164
authorities dated 12.02.2014
(iii) True copy of RTI application dated
165-166
19.01.2015
· (iv) True copy of the reply from Respondent
167
authorities dated 06.02.2015
24. ANNEXURE P-16: A detailed summary of
investigations conducted on anti-cancer drug, 168-205
Nexavar® (Patent No. IN21578)
25. ANNEXURE P-17: Copy of the submissions
made before United States Trade
206-221
Representative dated 07.02.2014 by Intellectual
Property Owners' Association
VOLUME II
26. ANNEXURE P-18: True copies of FORM-27
222-424
filings surveyed by the Petitioner (Contd.)
VOLUME III
27. ANNEXURE P-18: True copies of FORM-27
425-564
filings surveyed by the Petitioner
28. C.M. No. of 2015: An application for
exemption from filing certified/ dim/typed/ 565-567
margin copy of the annexure with affidavit
29. Vakalatnama 568
FILED BY:
Date : 21.05.2015 N. SAIVINOD
Place : New Delhi Advocate,
D-131, Panchsheel Enclave,
New Delhi -110 017
A
IN THE HIGH COURT OF DELHI AT NEW DELHI
(Extraordinary Writ Jurisdiction)
WRIT PETITION (C) NO. OF2015
IN THE MATTER OF A PUBLIC INTEREST LITIGATION
SHAMNAD BASHEER PETITIONER
VERSUS
UNION OF INDIA & OJ'HERS RESPONDENTS
COURT FEES
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GOVERNMENT OF NCT OF DELHI
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Date : 21.05.2015 N. SAIVINOD
Place : New Delhi Advocate,
D-131, Panchsheel Enclave,
New Delhi -110 017
IN THE HIGH COURT OF DELHI AT NEW DELHI
(Extraordinary Writ Jurisdiction)
WRIT PETITION (C) NO. OF 2015
IN THE MATTER OF A PUBLIC INTEREST LITIGATION
SHAMNAD BASHEER PETITIONER
VERSUS
UNION OF INDIA & OTHERS RESPONDENTS
URGENT APPLICATION
To,
The Registrar,
High Court of Delhi,
New Delhi.
Respected Officer,
Kindly treat the present Writ Petition as an urgent one as per the
Rules of Delhi High Court, as the urgent relief has been sought by the
Petitioner.
Yours faithfully,
Date : 21.05.2015 N. SAIVINOD
Place :New Delhi Advocate for the Petitioner,
D-131, Panchsheel Enclave,
New Delhi -110 017
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c
IN THE HIGH COURT OF DELHI AT NEW DELHI
(Extraordinary Writ Jurisdiction)
WRIT PETITION (C) NO. OF 2015
IN THE MATTER OF A PUBLIC INTEREST LITIGATION
SHAMNAD BASHEER' PETITIONER
VERSUS
UNION OF INDIA & OTHERS RESPONDENTS
NOTE OF MOTION
To,
1. Union of India
Through the Secretary,
Ministry of Commerce 8,r. Indush·y,
Udyog Bhawan
New Delhi - 110001 RESPONDENT NO. 1
2. Controller General of Patents,
Design and Trademark
The Patent Office
Baudhik Sampada Bhawan,
S.M. Road, Near Antop Hill
Mumbai- 400 037 RESPONDENT NO. 2
3. Controller of Patents and Design
The Patent Office,
Baudhik Sampada Bhawan,
Plot No. 32, Sector 14 Dwarka
New Delhi -110 075 RESPONDENT NO.3
The accompanying Writ Petition is likely to be listed before the
Hon'ble Court on 27.05.2015 at 10:30 0' clock in the forenoon, or soon
thereafter as may be convenient to the Hon'ble Court. Please take
notice accordingly.
You~,
N.SAI~
Date : 21.05.2015
Place :New Delhi Advocate,
D-131, Panchsheel Enclave,
New Delhi -110 017
D
SYNOPSIS
The Writ Petition is being filed in public interest to seek an
appropriate writ or directions against the Respondent
authorities to compel patentees and licensees to comply with the
statutory mandate to declare infonnation on the working of
their patents, as per the Patents Act, 1970 & Rules thereunder.
Section 146(2) of the Patents Act, 1970 read with Rule 131 of the
Patent Rules, 2003 compels every patentee and her licensee to
make an annual disclosure as to how far and to what extent they
have commercially worked their patent. The format for this
tnandatory disclosure is prescribed under Schedule II of the
Patents Rules as 'FORM-27'.
The Petitioner conducted an extensive survey of patent working
in three critical areas (a) pharmaceutical drugs (lifesaving drugs
for fatal diseases such as Cancer, AIDS, Diabetes and Hepatitis);
(b) telecommunications; and (c) publicly funded research and
development.
The survey revealed a blatant disregard for an important
statuto;ry tnandate, with close to 35% of the patentees failing to
disclose their patent working status during 2009 to 2012. Even
•
among those patentees that purported to make this disclosure,
the said disclosures were highly defective, inasmuch as they
were either incomplete, negligent or incomprehensible.
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More worryingly, the Respondents authorities have never
initiated action against any of the errant patentees. What makes
this government inaction even more egregious is the fact that
the blatantnon-compliance was already brought to the notice of
the government four years ago through a shnilar investigation
conducted by the Petitioner in a public report titled "The 'Non
Working' of the Patent Office 'Working' Requirement!"
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This cavalier disregard for an important statutory mandate is
•
particularly problematic, as patent working norms lie at the very
heart of India's patent system. The Patents Act grants a twenty
(20) year monopoly for inventions that are novel, non-obvious
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and useful. The grant of exclusionary "right~" are, however, not
absolute, but comes with corresponding "duties" imposed on
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patentees to work their patented invention, as far as practicable,
for the public benefit, by ensuring inter alia that patented
products are available in adequate quantities and a reasonable
price.
If the patentee fails to fulfill this important statutory mandate,
the Act imposes a penalty in the form of a compulsory license,
where third parties are given permission to manufacture and
sell the drug for the benefit of consumers. If the compulsory
licence also fails to fulfill this important public purpose, the
patent could then be revoked. The compulsory licensing and
revocation provisions will come to naught, if patent working
information is not made readily available.
Besides this, courts routinely deny the grant of an equitable
remedy (i.e., interim injunctions) when the patent has not beeri
worked.
A patent is effectively a fetter on the freedom of trade
guaranteed under Article 19(1)(g) of the Constitution of India, as
it blocks competitors from introducing their goods and services
in the market. But for such competition, the consumer suffers,
particularly in terms of affordable versions of patented
medicines. Therefore, such fetter must be tolerated only when it
is subject to reasonable safeguards such as ensuring that it is
worked for the public benefit ensuring availability in reasonable
quantities and at reasonable prices.
F
Patent working disclosure (as mandated by the Patents Act) is
therefore a critical one underpinning the very es?ence of India's
patent regime. The lack of such transparent disclosure will deny
valuable information around patents and their commercial
working to the larger public which is effectively suffering the
monopoly. It will render the compulsory licensing and
revocation provisions largely illusory, as without working data,
.
it is impossible to determine whether a patentee has satisfied the
reasonable requirements of the public, an important
precondition for compulsory licensing and revocation. It will
also make it difficult for honest competitors to assess their IP
. I
risks, whilst doing research and developing advanced
technologies or products that are likely to be of great value to
society. As a result, the rate of technological development and
research is likely to be hampered. More worryingly, this
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detrimental impact on competitors will ultimately affect the
general public, who are denied access to more affordable
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technologies, a concern most starkly felt in the context of
medicines.
Lastly, it is humbly submitted the present format of the FORM-
27 disclosure specified under the Patent Rules is yvholly
insufficient to fulfill the objectives of the Patents Act, inasmuch
as it lacks precision and fails to ask for several critical particulars
that are necessary for an effective assessment of the commercial
working of patented inventions. Without such working
information, the compulsory licensing and revocation
provisions will remain ineffective, and a failure to invoke them
in appropriate cases will ultimately affect the general public,
particularly in cases involving patented medicines and public
health.