High Court of Delhi

Onyx Therapeutics, Inc. Vs. Union of India and Ors.

MANU/DE/0728/2019

22.02.2019

Intellectual Property Rights

If law provides for a particular manner in which a particular thing is to be done, it should be done in that way only and none other

The present petitions is preferred for quashing the impugned orders passed by the Respondent No. 2 and restore the order dated April 10, 2017. Consequently, enable the Petitioner to cross-examine Dr. Surajit Sinha and Dr. Prachi Tiwari prior to a final hearing on merits in the Section 25(2), Patents Act proceeding initiated by the Respondent No. 3 against Patent No. 255964. Further, seeks direction thereby directing the Respondent No. 2 to pass an order on the Petitioner's objections/reply dated 5th June, 2015 to taking on record the additional testimony of Dr. Prachi Tiwari as filed by the Respondent No. 3 on 17th April, 2015, prior to any final hearing on merits in the Section 25(2), Patents Act, proceeding initiated by the Respondent No. 3 against Patent No. 255964.

In case of Financial Times Ltd., it has been recorded that since the affidavits are required to contain only the facts and not opinions expressed, the request for cross-examination is to be sparingly granted. Even in such a case, there is no absolute bar for cross-examinations. Likewise, in case of Swastick Pipes Ltd., it has been held that, under the Trade Mark Act, there is no exclusive and vested right to cross-examine a deponent.

In contrast, under the Act, Section 79 categorically grants the discretion to the Respondent No. 2 to permit the parties to cross-examine the witnesses. The present case is highly technical in nature, wherein the expert witness of the respondent No. 3 has provided his/her view/opinions/analysis of different prior art documents/literature relied upon him/her to opine that the invention claimed under the Petitioner's patent is not novel and is obvious in light of the prior art. Such technical analysis conducted by the expert witness(es) and his opinion thereto, cannot constitute facts per se. Therefore, in such cases wherein the request of cross-examination is prayed for, the same ought to be granted.

In the present case, the Petitioner has challenged the validity of the analyses of the said witnesses at the very outset, and thereafter at every opportunity provided to it under law. Therefore, in a proceeding where in the facts and circumstances of the case the credibility of the witnesses is in question or in doubt or its statement is in dispute, the denial of an opportunity for cross-examination shall amount to violation of principles of natural justice and vitiate the entire proceeding.

Vide emails, while relying on Section 79, the Respondent No. 2 had exercised its discretion and held that, cross-examination of witnesses of Respondent No. 3 was required. Once the Respondent No. 2 had conclusively held that, cross-examination was required, the respondent No. 2 could not have, in the absence of any new documents/developments/evidence suggesting so, formed a completely opposite prima facie view that it was not required. It is a settled position in law that, if the law provides for a particular manner in which a particular thing is to be done, it should be done in that way only and none other. Admittedly, in the present case, no application was filed by the Respondent No. 3 for review of said orders, and thus, the action of the Respondent No. 2 in reviewing its own decision suo moto, is without jurisdiction and a manifest error of law,.

Respondent no. 2 shall allow the Petitioner to cross examine the two expert witnesses of Respondent no. 3, but after the Petitioner filed affidavits of experts by controverting the opinion of expert witnesses of respondent no. 3. Respondent no. 2 shall also give right of cross examination, if sought by Respondent no. 3, to cross examine the expert witness(es) of the petitioner. Writ petition is allowed.

Relevant

Swastick Pipes Ltd. vs. T.T. Industries and Ors. MANU/DE/1058/1999
; The Financial Times Ltd. and Ors. vs. The Times Publishing House Ltd. and Ors. MANU/DE/2751/2016

Tags : Cross examination Right Expert witnesses

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