SUGEN INC. AND PHARMACIA & UPJOHN COMPANY LLC Vs. CONTROLLER GENERAL OF PATENTS, DESIGN, TRADEMARK AND GEOGRAPHICAL INDICATIONS, PATENT OFFICE ANDCIPLA LTD.

JUDGEMENT

(1.) IN the post grant opposition to Patent No. 209251 which related to a compound which modulates the activity of protein kinases, the Assistant Controller was pleased to revoke the patent. The patent covers the product Sunitinib which is marketed under the name, Sutent. This is the second round of litigation. Earlier, the post grant opposition was allowed and the patent was revoked on 24.9.2012. Aggrieved by that, the appellants filed a writ petition challenging the order on the ground of violation of the principles of natural justice. An interim order was passed by the Writ Court directing the respondent No. 2 not to take any steps towards marketing its drug. Against this, the respondent No. 2 filed an appeal and thereafter, moved the Hon'ble Supreme Court. The order dated 24.9.2012 was set aside for violation of the principles of natural justice and the matter was sent back to the Assistant Controller for disposal after hearing afresh. After rehearing, the Controller again revoked the patent on February 11, 2013. Thus, the matter is before us and now, the appellant presses for stay.

(2.) BEFORE we heard the counsel for both the parties, we indicated to the counsel that it was in the interest of all parties that the main matter is heard at the earliest, whatever be the outcome of the stay petition. And as agreed by both the counsel, 13th May, 2013 has been fixed for hearing of the main matter.

(3.) PURSUANT to the revocation of the patent, it is alleged that other pharmaceutical companies which make generic drugs are attempting to introduce into the market the generic version of the invention. Mr. Praveen Anand, learned counsel appearing for the appellants submitted that a temporary arrangement could be arrived at between the parties herein by which stay could be granted on the understanding, the appellants would not proceed against the second respondent herein. Learned senior counsel appearing for the second respondent submitted that they were not willing to make any concession which would secure to them an advantage over other generic manufacturers.