November 26, 2006

Reporting Patent Decisions

Our courts have, by force of tradition, found it habitually convenient to follow their previous decisions rendered on similar grounds. Despite the acquisitions of colour-matching, the practice had made the system predictable, and to an extent, efficient. As a system based on the doctrine of precedent, there is a great degree of trust imposed on reporting decisions of courts. There is a fairly trustworthy means of reporting decisions of the High Courts and the Supreme Court in place now. The decisions of the lower courts, being devoid of any binding effect, were never meant to make it to the reports.

Decisions concerning patents get reported when disputes are brought before the High Courts or the Supreme Court. The patent decision rendered by a Controller has a very rare chance of being reported. Out of the nearly 8000 pharmaceutical applications pending before the Patent Office, more than 150 opposition proceedings have been launched. Of the opposition decisions rendered by the Patent Office, only a few have been reported – Patent and Trademark Cases, a subscription journal has reported the decision on Wockhardt’s Nadoxin and Pharmabiz reporting the decision on Novartis’ Gleevac. You will find a summary report on some opposition proceedings here and here.

Reporting decisions of the Controller will have its own set of problems. First, these decisions can at best have persuasive effect offering guidance and cannot have any binding effect. Hence the primary incentive for reporting them is simply not there. Secondly, the humungous number of patent decisions (of rejection and grant of applications) rendered by Patent Offices the world over make it next to impossible to report them all.

Yet we find decisions of first instance being reported in an ingenious way. It has been the practice in the European Patent Office to include the decision of the first instance (Opposition Board) in its appellate decision. This form of indirect reporting serves the vital need of those who need to refer to the decision of the first instance for additional details and to get the bigger picture where needed. It will indeed be desirable for the development of patent law in this country, if the Appellate Board and the High Courts make it a point to include the decision at the first instance in their decisions.

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