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THE DELHI High Court has referred six drug patent cases to the Intellectual Property Appellate Board (IPAB), the apex government body to hear such disputes. This could set a precedent for all future appeals regarding `pre-grant’ patent rejection.

   The court’s order came after several companies filed separate writ petitions asking the court to reject earlier `pre-grant’ orders by different Indian patent offices.

   These cases include ELi Lilly vs Ranbaxy, UCB Farchim SA vs Cipla, Colorcon Inc vs Ideal Cures, Yeda Research & Development Co Vs Natco Pharma, and Eli Lilly vs Ajanta Pharma. The Delhi HC has asked the companies to file the appeal within 14 days to the IPAB.

   The patent applications of the foreign drugmakers were rejected, after the respective Indian companies challenged their claims even before the patent was granted in India.

   Pre-grant opposition refers to a drugmaker challenging the application before the patent is granted whereas under a post grant opposition a company can challenge the patent after it has been granted by the authorities. For a post grant opposition, companies can move the courts but there was confusion where they should appeal for a pre-grant rejection.

   Patent lawyers say Delhi HC’s order brings clarity on where such appeals can be made. “The confusion was with respect to whether or not the rejection of patent pursuant to a pre-grant opposition was appealable to the IPAB. The HC has now clarified that since the rejection effectively stems from Section 14/15 of the Indian Patents Act, it is appealable to the IPAB,” says Shamnad Basheer of National University of Juridical Sciences.

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