In a relief to pharma major Pfizer, the Intellectual Property Appellate Board here has set aside the revocation of the patent of the company's anti-cancer drug 'Sutent.'
The Board has asked the Patent Office to consider the entire matter afresh in a time-bound manner, which had twice revoked the patent earlier.
"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," Board chairman Justice Prabha Sridevan and technical member D P S Parmar said.
The Board reasoned that the Patent Controller had not sent the affidavit filed by Sugen Inc and Pharmacia and Upjohn Company LLC (both part of Pfizer Inc) for the consideration of the opposition board, which recommends the Controller on the patent application.
"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," they said.
The entire matter was now open and all the grounds shall be heard and decided by the Controller, who would look at the matter afresh, they said.
"We make it clear that we have not even examined the findings in the impugned order regarding obviousness and the relevance of the prior arts, so the Controller is free to decide the issues in accordance with law uninfluenced by the earlier decisions," they said.
In 2007, Pharma major Pfizer got the patent for 'Sutent' in India and in the following year Cipla Ltd opposed it, contending that the invention was publicly known or publicly used.
The Controller had revoked the patent in 2012, after hearing the case, which was challenged by Pfizer in the Supreme Court.
The apex court set aside the revocation and the Controller was directed to dispose of the matter afresh.
The Controller later revoked the patent again in February 2013. Challenging the revocation, the applicant moved the Board here.
