The latest legal battle
over patent rights in China for the impotency drug Viagra began in
a Beijing court Wednesday.
Drug maker Pfizer is suing the Patent Reexamination
Board (PRB) of the State
Intellectual Property Office for wrongfully invalidating its
China patent for the use of sildenafil, the active ingredient in
Viagra, a drug taken for male erectile dysfunction.
During the case's first hearing at Beijing No.1
Intermediate People's Court, Pfizer called for the withdrawal of
the PRB's decision, which was passed in July 2004.
The defendant insisted its conclusion had been
"right and legal with correct application of laws and
regulations."
In the meantime, Pfizer's patent on Viagra remains
valid and enforceable in China, pending a final court decision,
whether from the current hearings or, if either side contests the
intermediate court's verdict, from the Beijing Higher People's
Court.
Pfizer filed a patent application in May 1994 for
the use of sildenafil citrate in its products in China, which the
State Intellectual Property Office granted after seven years of
examination.
However, one individual whose identity was not
reported and 12 domestic companies challenged the validity of the
decision, and the PRB invalidated the patent on the grounds of
insufficient disclosure of the claimed invention.
The board claimed the patent manual failed to
provide convincing technical content, but Tai Hong, Pfizer's
attorney, argued the patent directions were sufficient.
"The decision made by the PRB had errors in facts
and (was an) erroneous application of the law," she said.
Tai said the decision by the PRB violated the
Trade-Related Aspects of Intellectual Property Rights
(TRIPS)?agreements.
She also stated that since the attorney involved in
the application for invalidity of the patent, Xu Guowen, was a
retired official with the PRB, the decision procedure was
inappropriate.
Jin Zejian, for the defendant, told the court the
2004 decision was a correct interpretation of Patent Law and
relevant examination guidance.
"To invalidate a patent?that does not accord
with the Patent Law was also to execute the TRIPS agreement," he
said.
As for Xu's qualifications, the defendant argued
that there was no law or regulation prohibiting retired PRB staff
from acting as patent attorneys.
The case has caused widespread concern over
intellectual property rights (IPR) protection for overseas
enterprises in China.
The American Chamber of Commerce-China said last
July that the PRB's decision was a step backward for IPR
protection.
However, Li Shunde, an IPR scholar from the Chinese
Academy of Social Sciences was quoted by China Economic
Times as saying that it was "legal."
(China Daily March 31, 2005)