Special Correspondent

`There is nothing in the provision which can be said to be arbitrary'

CHENNAI: The amended Section 3 (d) of the Patents Act and the explanation were valid, the Additional Solicitor-General, V.T. Gopalan, told the Madras High Court on Thursday.

In his arguments before a Division Bench comprising Justices R. Balasubramanian and Prabha Sridevan hearing petitions filed by Novartis AG, Mr. Gopalan explained that the amended provision was valid even in the light of various Articles of Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which gave the member-states freedom to determine an appropriate method of implementing the provisions of the agreement under their own legal system and practice.

Novartis AG had filed a batch of petitions challenging the order of rejection of its patent application for beta crystalline form of imatinib mesylate and section 3 (d) of the Act as amended by the Patents (Amendment) Act.

Mr. Gopalan submitted that the first part of Section 3 (d) taken along with the explanations only prohibited camouflage inventions for the purpose of continuing in the patent regime, which invention had no enhanced efficacy.

Mr. Gopalan submitted that an invention with a mere change of form without any enhanced efficacy could not be granted patent and if patent was granted, it would be arbitrary. The amended provision along with the explanation fully complied with Articles 7 and 8 of TRIPS. Article 7 said the benefits should reach the people. As per Article 7 "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations." Under Article 8 principle "Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreeement."

Article 27 of TRIPS provided for patents to be given only to inventions which were new and involved an inventive step. What was meant by inventive step had also been defined.

There were sufficient guidelines under the Statement of objects and reasons and other provisions of the legislation for exercise of power under the amended section. Hence, as such the amendment was not arbitrary.

The Additional Solicitor-General said no mala fides could be attributed to Parliament. Submitting that discrimination meant manifestly arbitrary, he said there was nothing in the provision which could be said to be arbitrary. On the other hand, the amendment conformed to the people's aspirations.

Senior counsel for Cipla Arvind P. Dattar and counsel for Ranbaxy V.Lakshmi Kumaran argued that it could not be said the amendment violated TRIPS. Mr. Dattar said the amended provision shut the door on frivolous inventions and opened the door to genuine ones. There was nothing vague in the impugned provision.

Anand Grover, counsel for Cancer Patients Aid Association, said the declaration sought by Novartis AG was not maintainable at all.

Arguments will continue on Friday.