A bench headed by Justice KS Radhakrishnan said that it will not be fair to transfer the matter to another Controller of Patents and Designs, when there is no bias. This is not fair. There is no basis for this, the bench said.
Senior counsel R Andhyarujina argued that as the officer who had heard this matter before had made up her mind when she revoked the patent, it should be shifted to any of the other nine officers. Justice should not be done, but should be seen to be done, he said, adding that there should be no violation of principles of natural justice.
Earlier, the apex court had remanded the matter to the Controller for a fresh hearing after Cipla had sought permission from the SC to market the generic version of the drug, which is used to treat renal cancer, in view of the revocation of patent rights by IPAB to Sugen and Pharmacia & Upjohn Company, which developed Sunitinib.
Cipla had argued that once the patent has been revoked, it is non-existent in the eyes of the law; hence, there can be no question of infringing it.
On September 24, the patent office had revoked Sugens patent under Section 3(d) of the Indian Patents Act of 1970, which bars patent for incremental changes that fall short of being inventive.