[Ip-health] Novartis Hearing update, 15.02.07

[chan park]

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Today, the Madras High Court heard the Novartis matter on certain prelimina=
ry 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) o=
f the Indian Patent Act was not in compliance with TRIPS and that it violat=
es Article 14 of the Indian Constitution, which prohibits discriminatory an=
d arbitrary state action. The CPAA and the generic companies had opposed th=
e applications to amend.  They did so on the ground that Novartis had not s=
pecifically claimed a violation of Article 14 in the original petitions.  A=
lso, the CPAA and the generic companies claimed that as far as TRIPS non-co=
mpliance was concerned, a domestic court did not have the jurisdiction to d=
ecide the matter.


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


The parties were also given the opportunity to file affidavits on Novartis=
=92 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 po=
lice officer, the hearing was adjourned until tomorrow.  To be decided tomo=
rrow is another preliminary issue of whether Novartis may convert its chall=
enge to the Patent Controller=92s order from a writ petition to an appeal. =
 This determination will have a bearing on the scope of review allowed by t=
he High Court.  While a review under a writ petition is limited to clear mi=
stakes in the law, the review available under an =93appeal=94 is broader, a=
nd the Court may look into mistakes in both fact and law.  After this issue=
 is decided, the arguments regarding Novartis=92 challenge to section 3(d) =
will begin.


Stay tuned.

>From Chennai,

The Lawyers Colllective HIV/AIDS Unit Team
Anand
Chan
Julie
Prafulla


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