The review petition was filed against the order dated May 25, 2011, passed by the IPAB dismissing the petition of Millennium Pharmaceuticals for condonation of delay, a legal procedure seeking excuse from delay in filing a petition. Issuing an order on the review petition, IPAB vice-chairman S Usha and technical member (Patents) DPS Parmar said, "On a plain reading of the order, we do not think there is any error to be reviewed. A review application cannot be allowed to be an 'appeal in disguise'. The error must be striking on the face of it. In this case, in fact the petitioner (Millennium Pharmaceuticals) wants to have the order corrected. We cannot re-hear the matter in the disguise of review."
The injectible Velcade is a first-in-class cancer therapy for treating patients with multiple myeloma and relapsed mantle cell lymphoma. It is one of the major revenue streams for Millennium.
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Pharmaceuticals, which was acquired by Takeda Pharma in 2008, as per the reports.
According to available information, Velcade is being co-developed by Millennium Pharmaceuticals, Inc and Johnson & Johnson Pharmaceutical Research & Development, LLC. Millennium Pharma is responsible for commercialisation of the drug in the US, while Janssen Pharmaceutical KK and Takeda Pharmaceutical Company Limited are responsible for commercialisation in Japan, and Janssen-Cilag is responsible for commercialisation of the drug in Europe and the rest of the world.
In India, the patent controller issued an order on July 24, 2009, refusing the grant of patent for Bortezomib under a National Patent Application. The counsel for Millennium Pharmaceuticals received the order on August 28, 2009, and filed an appeal on March 26, 2010, which according to the board "after a long delay".
The counsel for the pharma firm submitted that on the day the impugned order (which refused patent) was passed, it was understood there was no express provision to file an appeal against an order under Section 25(1) of the Patents Act, 1970, and the remedy was to file a petition under Article 226 of Constitution of India.
The counsel further submitted that subsequently a decision of the Delhi high court on February 8, 2010, declared the law and it was held that an appeal against the order under section 25(1) is maintainable. The counsel said that following this, the company filed the appeal on March 26, 2010.
However, in an order issued on May 25, 2011, then IPAB chairman Justice Prabha Sridevan and technical member (Patents) DPS Parmar, said, "We are not satisfied that the appellant (Millennium Pharmaceuticals) has explained the delay in filing the appeal against the order dated July 24, 2009, with the delay of more than four months. It is not really length of the delay which matters, but whether the explanation is satisfactory. There is no explanation in the affidavit filed by the appellant. The petition is dismissed."
The board also observed then that to take advantage of the order, the appeal should have been filed at least within two weeks from the date of judgement of the Delhi high court.
Natco Pharma, which has been opposing the patent application, argued the question of deciding whether there was sufficient cause for the delay in the Condonation of Delay petition would arise only if some reason is shown in the affidavit. However, it said there was no reason is given in the affidavit to support the petition.
The fact that there was a judgment in a matter in which Millennium Pharmaceuticals was not a party cannot be a reason for the delay, they argued.