E.R.Squibb & Sons LLC v Union of India (2026)

Summary

“The Indian Patent No.340060 was granted in respect of an invention titled as ‘Human Monocolonal Antibodies to Programmed Death I (PD-1) for use in Cancer’, which is used for treating cancer.” (para 2) “The third respondent herein has given a post grant opposition under Section 25(2) of the Patents Act, 1970 as against the grant of patent. Based on which, the opposition Board has made the impugned recommendation.” (para 2) The petitioners had “filed a Miscellaneous Petition, which questions the maintainability of the rejoinder filed by the Respondent No.3 and also the evidence under Rule, 59” (para 3), and it was their case that “the opposition board has made the recommendation without considering the evidence submitted by the patentee” (para 4). The third respondent “raised a preliminary question with regard to the maintainability of the writ petition” (para 10).

The Court framed the point as “whether the writ petition is maintainable or not?” (para 21) It held that “what has been challenged is only a recommendation and a final decision is not yet taken by the authorities” (para 27), that “it is always open to the petitioners to place all their objections before the competent authority” (para 28), and that “it is only for the patent authority to decide the post grant opposition on its own merits” (para 30). “Accordingly, the Writ Petition is dismissed as not maintainable. No costs.” (para 31)

What the court decided

1. The point for consideration. “The point that arises for consideration in this writ petition is, whether the writ petition is maintainable or not?” (para 21)
2. The reconstitution precedents. “In the judgment of Ashok Leyland, which is relied upon by the learned senior counsel for the petitioners, both the parties have consented for reconstitution of the Board.” In Optimus Drugs “both parties involved in the said case were permitted to and submitted evidence subsequent to issuance of the recommendation by the Board.” “However, in the present case, the recommendation is issued after considering the evidence already placed on record. Therefore, the writ petitioners cannot maintain the above writ petition by relying upon a judgment, wherein the Board was reconstituted with the consent of both the parties.” (para 24)
3. The recommendation and the hearing. “a reading of the recommendation would show the discussions on the materials placed before the Board. At the same time, what has been challenged is only a recommendation and a final decision is not yet taken by the authorities. It is to be noted that after the recommendation has been made, an opportunity of hearing will be given as per Rule 62(1) of the Patents Rules, 2003.” (para 27)
4. Objections before the Controller. “even if the petitioners are aggrieved by the recommendation, it is always open to the petitioners to place all their objections before the competent authority including the contention of non-application of mind or non-consideration of patentee’s evdience by the opposition Board” (para 28)
5. Prejudice. “when there is an opportunity of hearing under Rule 62, the petitioner is entitled to place all the submissions and objections during the hearing.” (para 29)
6. Only a recommendation. “Looking at any angle, it is only a recommendation and it is only for the patent authority to decide the post grant opposition on its own merits. The patent authority may concur with the recommendations or may reject the recommendations and even call for a fresh constitution of the Board.” “There is also an appeal provision to challenge the said final order to be passed by the competent authority under Section 117A of the Act.” (para 30)
7. Disposition. “this Court is not inclined to quash the recommendation.” (para 30) “Accordingly, the Writ Petition is dismissed as not maintainable. No costs.” (paras 30–31)

Subsequent treatment

No later judicial treatment and no further appeal traced as of 17 October 2026.