Live Law: New Delhi: Sunday, January 14, 2018.
The Delhi
High Court, on Wednesday, made it clear that patent working information is not
“confidential” and has to be mandatorily submitted by all patentees.
The Court was
hearing a Writ Petition filed by Prof. (Dr.) Shamnad Basheer who has alleged
non-compliance with the provisions of Patents Act, 1970 on the part the
Controller General of Patents. The Petition demands that the authorities be
directed to enforce the statutory obligations under the Act. In addition, it
also seeks a direction to constitute a committee for examining the present
format for filing of “patent working” documents as prescribed by Form-27.
During a
recent hearing, Mr. Basheer pointed out serious lapses in the filing of Form 27
by various patentees. Form 27 filings
are meant to indicate how patentees have, or have not, worked the patent to the
public benefit. He alleged that even those who had filed such documents had submitted
only scanty information. He further contended that despite the failure of the
patentees to comply with such requirements, no action had been taken against
them.
In this
regard, Mr. Basheer drew the Court’s attention to the Annual Report 2012-13
submitted by the Office of the Controller General of Patents. According to the
Report, while 43,920 patents were issued during the year 2012-13, returns as
prescribed under Form-27 have been received only in 27,946 cases, out of which
only 6,201 patents were found to have been worked by the patentees. He also
submitted an RTI response to support his claim that no action had been initiated
for non-submission of of Form-27.
Besides, Mr.
Basheer pointed out several instances of such lapses. He submitted that NATCO
Pharma, that was granted a compulsory license over an important anti cancer
drug, did not disclose as to how it was operating the license. This is despite
the fact that the Act requires such reporting on working of patents even from
licensees. In fact, the compulsory licensing order had mandated that NATCO
submit all information pertaining to quarterly sales. Ericsson had also, in one
of its forms, refused to disclose licensing details citing “confidentiality” or
trade secrecy. No action has, however, been taken on such violations of the
provisions.
On Wednesday,
the Court largely agreed with the contentions put forth by Advocates Sai Vinod
and Abhimanyu Bhandari, who are representing Prof. Basheer.
The Bench
comprising Acting Chief Justice Gita Mittal and Justice C. Hari Shankar then
observed, “It is pointed out that so far as the grant of patents are
concerned, information in regard thereto is available on the website of the
Patents Office. All that the patentees submitting Form-27 are required to
submit, is the details of the licenses and sublicenses. This information
certainly cannot be termed “confidential” and therefore, the Patents Office has
to treat such suppression as failure to comply with the requirements of Section
146 of the Patents Act, 1970 arid to take action against the patentees who do
not furnish the required information.”
The Court
further noted that the petition has been pending since 2015 and that it does
not have any information as to whether there has been a change in the manner of
compliance since then. It, therefore, allowed Mr. Amit Mahajan, who was
appearing on behalf of the Central Government and the Controller General, to
inform the Court about the action taken against patentees for such
non-compliance.
Listing the
matter on 18 January, the Court also sought to know the steps being taken to rectify
Form-27.
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