D.P.S. Parmar - (1.) THIS application u/s. 64 read with section 117D of the Patents Act, 1970 is filed for revocation of patent No. 212695 (herein referred to as 695) granted to Allergan Inc. for invention "Hypotensive Lipid (prostaglandin derivatives) and Timolol composition and methods of using same". This application for revocation was filed by Ajanta Pharma Limited. Mr. S. Majumdar senior Advocate appeared for the applicant and Mr. Praveen Anand senior Advocate represented the respondent. Both the counsels, besides arguing the matter at length, have also filed their written submissions on the preliminary issue as well as on merits. |
(2.) THE subject patent relates to ophthalmic pharmaceutical compositions for treatment of ocular hypertension. In particular it relates to fixed combinations of Hypertensive lipid and Timolol component. Hypertensive lipid component is selected from cyclopentane N -ethyl heptamide -5 -cis -2 -(3a´ -hydroxy -phenyl -1 -pentenyl) -3,5 -dihydroxy,[1 a´, 2á, 3a´, 5 ´] (referred as BIMATOPROST) pharmaceutically acceptable salts thereof and mixtures thereof. The inventors claimed to achieve enhanced treatment of ocular hypertension with reduced side effects. PRELIMINARY OBJECTIONS Limitation
(3.) MR . Anand submitted that the revocation petition filed by the Applicant is clearly time barred as the patent was granted on 14.12.2007 and the present revocation petition was filed by the Applicant on 12.08.2011, almost after four years. According to the learned counsel the factum of an application having been filed and granted to the Respondent was published by the Indian patent office on two occasions: Under Section 11(A) of the Indian Patents Act on 24th March 2006, and on 14th December 2007 under Section 43(2) of the Indian Patents Act. He contended that both the publications provided adequate constructive notice to file objections to the patent. The learned counsel submitted that the Applicant chose not to file either post grant opposition proceedings or even revocation proceedings under Section 64 of the Indian Patents Act within three years from the date of grant of the patent but moved an application for revocation almost four years after grant of the patent, which is clearly beyond the limitation period of three years prescribed by the Limitation Act. The learned counsel submitted that the grant of a patent has a limited term of 20 years from the filing date. He submitted that the Hon'ble IPAB may pass necessary orders in order to ensure that a limitation period is applied for instituting revocation proceedings under Section 64, even though the Indian Patents Act does not specifically provide for the same.;