Bayer Schering Pharma has been granted approval to proceed with its appeal in its patent case for oral contraceptive brand Yasmin, also known as Yaz. The Intellectual Property Appellate Board (IPAB) has issued the order to approve Bayer Schering’s Condonation of Delay (COD) petition against the Patent and Design assistant controller’s refusal to approve its Yasmin patent application. Bayer Schering has previously applied for a national phase patent for its “Pharmaceutical Combination of Ethinylestradiol and Drospirenone for use as a Contraceptive.” The patent office refused on grounds that Yasmin was not a novel treatment and failed to involve an inventive step relevant to preceding observations. The decision to refuse Bayer’s application was made on December 2, 2010, during the pre-grant opposition raised by Indian companies Cipla Ltd and Natco Pharma. Cipla’s generic version of the product is reportedly named Crisanto while Natco’s generic is named Tarana.
The two companies have voiced objections against Bayer Schering’s COD petition. Natco and Cipla’s counsel said there was no reason for Bayer Schering to take much time to file the appeal when evidence was available. The companies’ counsel also said that it was unacceptable for the appellant to reinforce its case with a filing for additional evidence as cause for the delay.
A COD admits an appeal even past the time limit if the appellant is able to give a satisfying cause for not submitting an application during the prescribed period. Chairman Justice KN Basha and technical member (Patents) DPS Parmar of the IPAB bench said Bayer has given a valid reason for the delay. “In view of such a valid reason assigned by the appellant/petitioner (Bayer Schering Pharma), we were unable to countenance the contention of the learned counsel for the respondent (the two domestic pharma firms) that the petitioner has assigned the only reason of collecting the materials, for the delay.”