US biotech firm wins legal battle

The Madras High Court has refused to direct the Controller General of Patents, Designs and Trademarks to revoke the registration of an Indian patent by the United States-based Kibow Biotech for an invention that augments kidney function by carrying out breakdown of uremic/nitrogenous toxins in the gut before their transfer to the kidney.

A Division Bench of Justices R. Subbiah and C. Saravanan dismissed a writ petition filed by Gujarat-based La Renon Healthcare Private Limited in 2014.

The petitioner had approached the High Court after the Intellectual Property Appellate Board in Chennai too, had on November 13, 2013, rejected its plea for revoking the patent granted to Kibow Biotech.

Stating that the High Court could not exercise appellate jurisdiction over the IPAB under the writ jurisdiction, the Bench said the scope for examining the board’s order was limited to the extent of finding out if there were any procedural infirmities in the course adopted by the board.

On examination, the court did not find any infirmities. Before proceeding to decide the case, the judges said what would weigh on their mind was the fact that patent system was based on a “bargain or quid pro quo in which the inventor is granted an exclusive right in a new and useful information for a limited period in exchange for disclosure of the invention so that the society can benefit from this knowledge.”

Justice Subbiah said: “The patent bargain encourages innovation and advances science and technology. This is the fundamental policy and rationale for grant of monopoly in the form of patent.” In so far as the present case was concerned, the Kibow Biotech had obtained the patent in 2006.

It subsequently initiated infringement proceedings against La Renon forcing the latter to challenge the grant of the patent on the ground that there was neither an invention nor any inventive step as enunciated under the Patents Act of 1970 and that specifications of the patent only disclosed admixture of the integers.

Though the Gujarat-based firm had filed as many as 43 documents before the IPAB, to substantiate its claim, the Division Bench said it had failed to effectively prove its case before the board. “After filing of these documents, the writ petitioner submitted that it is for the fourth respondent (Kibow Biotech) to peruse and distinguish their irrelevance.

“In our view, though the patent is revocable… yet the burden of proof to establish the grounds was with the petitioner… The onus of establishing invalidity on any of the grounds cannot be shifted to the patentee… The petitioner had an opportunity to let in evidence of an expert to substantiate the grounds for revocation. However, the petitioner failed to do so,” the Bench concluded.


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