Breather for Pfizer on anti-cancer drug

The Intellectual Property Appellate Board (IPAB) has set aside the revocation of the patent of Pfizer's anti-cancer drug Sutent (Sunitinib). This comes as a breather to the pharma giant as the patent was revoked twice by the Patent Office earlier. IPAB asked the Patent Controller to consider the entire matter afresh in a time-bound manner.

"The impugned order is set aside and the matter is sent back to the Controller General with directions to constitute a fresh opposition board and to nominate a controller other than the controller who has passed the impugned order to decide the matter within a time-bound frame," IPAB chairman Justice Prabha Sridevan and technical member D P S Parmar said in the order.

IPAB observed that the Patent Office order had to be set aside since the controller did not send an affidavit filed by Sugen Inc and Pharmacia and Upjohn Company LLC, which are part of Pfizer Inc, for the consideration of the opposition board, which recommends the controller on the patent application.

"As we have stated earlier, there is no reason why this affidavit was not sent to the board. On this ground, we have no option but to set aside the order. The report of the board is an important material in the post-grant proceedings. The controller is free to agree or disagree with it , but he must consider the report. Similarly, the entire evidence must be before the board, which is free to draw its own conclusion from the evidence," said the IPAB order.

IPAB has also said the opposition board should be preferably constituted with members other than those who were in the earlier board to ensure fairness. "So the entire matter is open and all the grounds shall be heard and decided by the controller, who will look at the matter afresh," it added.

Pfizer received the patent for the drug in India on August 23, 2007 and the post grand opposition was filed by Indian generic major Cipla Ltd on August 29, 2008, citing the invention was publicly known or publicly used.

The controller held the hearing and the patent was revoked on September 24, 2012.

Pfizer challenged the order and the matter went to the Supreme Court, where the revocation was set aside. The controller was directed to dispose of the matter afresh. The controller revoked the patent for the second time on February 11, 2013, against which the applicant approached IPAB, which ordered an interim stay till May 13, 2013.