Advocates:
['m/s r vaigai', '', 'ANNA MATHEW', 'M N SUMATHY', 'S HAJA MOHIDEEN GISHTI', '', 'ACGSC', 'M/S T K BHASKAR', 'SRINATH SRIDEVAN', 'K HARISHANKAR']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 02.12.2008

Coram:

The Hon’ble Mr.A.K.GANGULY, CHIEF JUSTICE

and

The Hon’ble Mr.Justice F.M.IBRAHIM KALIFULLA

Writ Petition No. 24904 of 2008

and

M.P.Nos. 2 & 3 of 2008

1. Indian Network for People living with HIV/AIDS,

Rep. by its President,

Flat No.6, Kash Towers,

93, South West Boag Road,

T.Nagar, Chennai – 17.

2. Tamil Nadu Networking People with HIV/AIDS,

Rep. by its President,

No.391/30, 8^th Street, K.K.Nagar,

Near Mahatma Montessori School,

Madurai – 625 020.

… Petitioners

Vs.

1. Union of India,

Rep. by the Secretary,

Department of Industrial Policy and Promotion,

Ministry of Industry and Commerce,

Udyog Bhavan,

New Delhi – 110 011.

2. Controller General of Patents & Designs,

and Trade Marks

Bhoudhik Sampada Bhavan,

S.M.Road, Near Antop Hill Head Post Office,

Antop Hill, Mumbai – 400 037.

3. Assistant Controller of Patents & Designs &

Trade Marks, Intellectual Property Office,

G.S.T.Road, Guindy,

Chennai – 600 032.

4. F.Hoffmann-La Roche AG,

124, Grenzacherstrasse CH 4200,

Basle, Switzerland.

…. Respondents

https://hcservices.ecourts.gov.in/hcservices/

Petition filed under Article 226 of the Constitution of India

praying for the issue of a Writ of Certiorarified Mandamus calling

for the records of Patent Application No.959/MAS/1995 and Patent

No.207232 and after going through the same, quash patent No.207232

granted by the office of Respondent Nos. 2 & 3 in Patent

Application No.959/MAS/1995 filed by Respondent No.4 and

consequently direct the Respondent Nos. 2 and 3 to consider Patent

Application No.959/MAS/1995 after hearing the Petitioners as per

Section 25 of the Patents Act, 1970 read with Rule 55 of the

Patent Rules and award costs.

For Petitioner

::: Mr.Anand Grover, Senior Counsel

for Ms.R.Vaigai.

For Respondents

1 to 3

::: Mr.Haja Mohideen Gisthi

For Respondent 4

::: Mr.A.L.Somayaji, Senior Counsel

for M/s.T.K.Baskar

O R D E R

THE HON’BLE CHIEF JUSTICE

Both the petitioners in this writ petition are registered

societies under the Tamil Nadu Societies Registration Act, 1975

and they are providing support to people living with HIV/AIDS

(herein after referred to as “PLHIV”). The petitioners try to lend

support to PLHIV in critical areas such as access to medicine and

treatment and also for removal of discrimination facing PLHIV in

Indian society. Members of the petitioner organizations are

citizens of India.

2. F.Hoffmann-La Roche AG, the 4^th respondent herein,

is a pharmaceutical company registered in Switzerland having its

office at 124, Grenzacherstrasse CH 4200, Basle, Switzerland. It

filed a Patent Application titled “2-(2-Amino-1, 6-Dihydro-6-oxo-

purin-9-yl)-methoxy-1,3-propanediol

Derivative”,

which

was

allocated No.959/MAS/1995, for a patent relating to

Valganciclovir, which is a drug used to treat CMC retinitis. The

4^th respondent’s Patent Application No.959/MAS/1995 was filed on

27.07.1995, and the 2^nd respondent published the said application

on 25.02.2005 in Issue No.06/2005 in the Official Journal of the

Patent Office.

3. Thereafter, on 12.07.2006 the petitioners filed a

representation by way of opposition at a pre-grant stage to the

Patent Application of the 4^th respondent under Section 25(1) of

https://hcservices.ecourts.gov.in/hcservices/

the Patents Act, 1970 (herein after referred to as the “said Act).

In the said application it was contended by the petitioners that

the Indian Patents (Amendment) Act, 2005 was passed to make the

said Act compliant with the obligations under TRIPS. TRIPS, signed

in 1995, required India to effect a product patent regime after

ten years. From 1995, it became clear that India would adopt a

product patent regime by 2005. Prior to the Patents (Amendment)

Act, 2005 the said Act only granted patents for processes but not

for prod