Sugen-Cipla litigation lands before the Supreme Court - Headed for controversy?

Image from here

As per reports in the ET and IE, the Supreme Court, acting on a petition by Cipla, has stayed the orders of the Delhi High Court which had stayed the Patent Office’s decision to revoke Sugen’s patent for Sunitinib. 

As readers may remember, a Single Judge of the Delhi High Court had earlier temporarily restrained Cipla from releasing its generic version of Sunitinib, the decision of the Patent Office to revoke Sugen’s patent since Sugen had claimed that the Patent Office had not provided it with a copy of the report of the Opposition Board. Sugen’s argument is extremely weak for reasons that I’ve already discussed in an earlier post over here. A Division Bench of the Delhi High Court had declined to interfere with the order of the Single Judge. The Single Judge was scheduled to hear the matter only on the 6th of December and declined, on the 5th of November, to entertain a petition by Cipla for early hearing of the case. 

Subsequently Cipla, filed a SLP before the Supreme Court which was heard the matter on either the 7th or the 8th of November. According to the Economic Times, “Senior advocate Harish Salve and advocate Pratibha Singh mentioned the petition on behalf of Cipla before the bench.” From what I understand a matter can be ‘mentioned’ only if counsels for both parties are present. On hearing the petition, according to the ET, the Supreme Court reportedly passed the following order: “Issue notice, returnable on December 5, 2012. There shall be interim stay of operation of the impugned orders of October 12, 2012 and October 8, 2012 of the high court for a period of one month.” I am unable to access this order on the SC’s website. 

Usually, in such high-profile matters, the opposite side, in this case Sugen, would have filed a caveat before the SC to ensure that no adverse order is passed against them without prior notice. 

Going by a subsequent order of the Supreme Court, which is available on its website, it appears that Sugen did indeed file a caveat but were not given notice of Cipla’s petition. The fact that Sugen did not get notice despite being on caveat, is a serious irregularity, which has been taken cognizance of by the Supreme Court. In pertinent part, the order of the Supreme Court states: 

“Mr. T.R. Andhyarujina, learned senior counsel appearing for Respondent Nos.2 & 3 submits that although the respondents were on caveat, no notice of listing by way of mentioning was given to them and the respondents could not be represented yesterday when the Court, while issuing notice, stayed operation of the impugned orders. 

Registry to submit report as to why caveat was not considered and notice of listing of matter was not given to the respondents, who were on caveat. 

List on 19.11.2012.”