The ET reported on the suspension of a patent official for alleged "irregularities", in the context of a now famous B.Braun patent litigation case. I excerpt the critical portions below:
"The government has suspended a senior Chennai patent official and initiated inquiry against another who retired earlier this year, for granting patent in a ‘highly irregular and improper’ way to German medical device maker B Braun.
The move follows an investigation by the country’s Controller General of Patents, PH Kurian, who found the ‘irregularity’ related to patent granted to B Braun for its popular intravenous device Safety Intravenous Cannula. In his report submitted to the commerce ministry, Mr Kurian held assistant controller CN Shashidhara and former deputy controller KM Vishwanathan responsible for the irregularities. “Government may take appropriate action against them,” he wrote.
Unfortunately, I was misquoted in the article as below.
"The development will strengthen the case of Indian drug-makers and health activists who allege that some patents are being given in the country under influence of innovator companies. “This highlights the case of many potential influences by companies across Indian patent offices,” Shamnad Basheer, a Kolkata-based patent expert said.
He said the particular case of B Braun is a procedural error and it cannot be completely established whether it was done under any influence. A report last year by Austria’s public sector entity to promote innovative firms and new technologies, Wirtschaftsservice (AWS) had alleged unhealthy nexus between Indian patent officials and legal representatives or patent agents of healthcare companies, Mr Basheer said.
Since the reporter engaged me in a brief telephonic conversation just before the story, he may have got my version wrong.
I was asked two pointed questions:
1. Question: Are there allegations of an unhealthy nexus between patent agents and the patent office?
Answer: Yes, and the AWS report is good testimony to this.
2. Question: Does this particular report by CG Kurian highlight such an instance of an unhealthy nexus?
Answer: No, this report only establishes irregularity by patent officials. It does not establish any wrong doing by the patentee or their patent agent.
Needless to state, the basic thrust of my message to the reporter, namely that Mr Kurian's report does not establish any wrong doing on the part of the attorney, was not communicated through the article. In fact, I also clearly mentioned to the reporter that the Controller General, PH Kurian clearly found that the amendment was a permissible one, since it was within the scope of the earlier description filed.
It was only the procedure that was flawed. The CG found that since the amendments were effectuated after the date of grant of the patent, the amendments ought to have been advertised (since they were effectively "post grant" amendments). The irregularity lay in the fact that the amendments were treated as pre-grant amendments and not published. Consequently, the defendant in the B-Braun case (Polymed) instituted a complaint before the Ministry of Commerce forcing the CG to institute the enquiry.
All of this raises a very pertinent issue: what exactly is the date of grant of a patent? This was debated on this blog in the context of the Snehalata Case, where Justice Muralidhar appears to have settled the law on the point (to some extent) by holding that the date of grant is the date on which the Controller decides to grant the patent and not the date on which the granted patent is published. Given that this question of law was a tricky one and remained relatively unresolved until Snehalatha's case, is it far to impute wrong doing on the part of any party who had been working in a climate of legal uncertainty?
It must also be noted that one of the patent controllers who was a member of the enquiry committee submitted a report to the CG Kurian stating that one particular claim amendment by B.Braun was beyond the scope of the description. Surprisingly however, the officer was quite vague in his findings. He began by stating that the amendment was not strictly part of the description as filed. And yet, later, in the very same breadth, he went on to state that this claim amendment was inherent in the filed description. Surely this official appears to have mastered the art of intentional ambiguity!
As we speak, B.Braun is engaged in a hotly contested litigation with Polymed. For those interested in the first instance order (by Justice Badar Durez Ahmed), see here. The matter was appealed and decided by a bench comprising of Justice Mukul Mudgal. Unfortunately, we do not have a copy of this order. We'd be grateful to any reader for sharing this order, if they have it.