Author: SuperLawyerTeam

This interview has been published by  Priyanka Karwa and The SuperLawyer Team

Please  tell us about your journey and how you ended up pursuing a career in law, particularly in the field of Intellectual Property Rights?

After college, I wanted to do medicine. But, due to some circumstances, I couldn’t do that and turned to law.  I had seen some of my father’s friends as lawyers and was curious. So I took to law and joined practice at the District court. I had exposure to many common areas of law like conveyancing, land laws, contracts, arbitration, and even medical negligence. The medical negligence case really got me hooked on law. Then I got work on some trademark cases at my senior’s chamber  (Mr Khaladkar) which lured me into the area of intellectual property law. Because IP was not so well known in District Courts, we came to Delhi to explore and understand this area bit better.  

I realised that there are lawyers who specialise just in intellectual property law. As a green horn I wanted to absorb every bit of work that came my way – be it a trademark matter or any other. Eventually, I joined K&S Partners where I had the good fortune to work on very interesting matters including the Basmati patent revocation, turmeric patent revocation, neem patent revocation, etc. My knowledge in sciences came in handy in patent matters, be it drafting or developing arguments in court. So it was reinforced that IPR was the way to do it. 

Soon in 2008-09 I set up my own practice. I then had the occasion to work on various important matters including the first ever compulsory licence that was granted in India by the Patent office. I continue to work on patent and other intellectual property matters and with new technologies, I think there will be many more opportunities for us to assist the court and  development of law. It has been a very interesting journey and I really cherish every moment. 

With a background in biotechnology, what led you to specialize in Intellectual Property Rights? Was there a specific experience or event that sparked your interest in this field?

As I mentioned, my initial  years of practice were focussed on general law. It was deliberate, as I felt that one should first build a sound fundamental platform and from thereon, one can expand and deep dive into any specific area of your liking. That’s how I did a myriad of matters including cases relating to Urban Land Ceiling Act, banking, arbitration, conveyancing, medical negligence etc. All this made me look at different areas and open up new vistas. But I always wanted to use my science background and was looking for an appropriate area where I could put this to use. My senior’s chamber had some cases on medical negligence which were very interesting. In fact, there was a suit for damages against a doctor which was filed and it was my science background that helped us make comprehensive and incisive arguments that impressed the court and finally led to dismissal of the suit. Then we got a couple of patent matters – where again I had the occasion to assist the court with my technical knowledge. We won that matter also.  All this fortified my belief that IPR is an area where my science background would inevitably be my Ace card and this area is what I should specialise in. Back then in 1995-96, generalisation was the trend and specialisation rarity. But the more I read about Intellectual property, the more I fell in love with the subject. And the love affair continues till date. Even today, I think, all that I know is just a tip of the iceberg. There is an undiscovered ocean and even a lifetime is not enough to master this infinite ocean of knowledge. You may say I was lured into IPR practice. 

You founded Rajeshwari & Associates, a full-service IPR law firm specializing in various areas. What motivated you to start your own firm, and what were some of the challenges you faced during the initial years?

I was always taught that law is a service, a profession where one has ample occasions to serve the public at large. And I have experienced it first-hand. We had a case relating to a land dispute (partition dispute) and our client was a farmer from Aurangabad. He would dutifully come on each day of argument, sit at the chamber with folded hands and hope that we would be able to argue and win his case. He knew he has contributing nothing in terms of law- but that was his way of expressing his moral support to us. 

Eventually, we won the case for him at the District Court. He was so elated, so happy  that tears welled up in his eyes and he fell at the feet of my senior. We were literally “gods” for him!!!

Our whole chamber of 15 lawyers had worked day and night to research and develop arguments for his case. When we won the case and saw the expression on this man’s face, we as young lawyers felt a deep sense of satisfaction, a sense that we did something that impacted someone’s life positively. I cannot tell you the joy that we felt or express in words the feeling that we had. All our gruelling days of hard labour, the slavery, the torture by my senior just vanished with this one expression. 

A week later he returned with two sacks full of potatoes and rice. That was the client’s way of paying the fee for the case. My senior also accepted it with grace and did not ask anything at all. Nothing was spoken but both knew what was going on. 

This again reinforced that we actually did something good and our work was not academic. There were many such instances that had left an indelible mark and resulted in a firm resolve, that one day, I will have my own chamber where I will serve such clients and witness the happiness on their face.  That is why, after serving in a law firm for many years, I started my own practice where I have complete freedom to decide which matters I should take up, when and how. I only wish I had done this much earlier. 

Over the course of your career, you have achieved significant milestones in the field of IPR, including winning the first ever compulsory license for Natco and litigating the Glivec battle up to the Supreme Court. Can you share some insights into these landmark cases and the impact they had on the Indian patent landscape?

Both these cases that you mention have had a socio-economic impact. First – the compulsory licence case. That case was one where I and every one in my team had worked for days on end researching, strategizing, going back to the drawing board again and again. And of course, with the firm backing from our client Natco, we could make it. Our client’s mission was to make a life saving drug (sorafenib) available to the common man- to save a liver cancer patient from immediate death and extend his life by several months. It was about a big pharma abrogating to itself the right to choose who would live and who would die. The mission was so huge that we couldn’t help identifying ourselves with it and acting as catalysts. The case had its own share of challenges- like how to prove that the drug sorafenib sold at Rs. 2,80,000 by Bayer is not affordable ? There was no published article that profiles and analyses the income of liver cancer patients. So, we did a survey of such patients. 

Then, came the simultaneous suit for infringement, and our counter-claim. The court in the infringement suit asked how we could argue that the patent is invalid and at the same time, ask for compulsory licence. The answer lay in the Patents Act itself – which carves out no exception as to who can challenge the validity of a patent and provides that non-challenge clauses in agreements are bad. Case law such as Lear vs Adkins (US) came to our assistance. 

Then came the arguments before the Controller General – I was opposite a Senior Advocate Sudhir Chandra and he was at his shrillest best. Though I may not have matched the pitch in terms of decibels or stature, me and my team had worked equally hard  to present a compelling case for grant of Compulsory licence which was ultimately upheld by the IPAB, the Bombay High Court and Supreme Court. 

The Glivec case was also a device of strategy, strong technical arguments and arguments of public interest. Here, Novartis had been granted the first ever Exclusive Marketing Rights (EMR) under the Patents (amendment) Act 2002. Basis this, they were rightly granted injunction by the Madras High Court against certain parties. We challenged the EMR at the Delhi High Court on the ground that it was granted without hearing the affected parties, and without due notice. Novartis immediately filed a suit at the High Court of Bombay, being armed with the Madras High Court order. Our client was naturally jolted. I was told by my colleagues that its no use fighting the suit at the Bombay High court who is bound to grant injunction in view of the Madras High Court order. However, I was hopeful. We argued many issues including public interest. In fact public interest was a very strong argument in the facts of that case – the drug imatinib mesylate was to be given to CML (blood cancer) patients who were in their final stage. The cost of the drug as sold by Novartis was Rs. 1,10,00/- per month as compared to Rs. 6000-8000 of our client. We cited case law from the UK and other countries and argued various aspects of public interest. The court ultimately refused the injunction, and the primary basis is public interest. The judgement is reported as ‘Novartis Vs Meher Pharma’. 

There was also the opposition to the patent application for polymorphic form of imatinib mesylate which opposition was allowed by the Patent office on the ground that the invention lacked novelty, inventive step and failed on the ground of section 3(d). This was one of the first ever cases where the Patent office had the occasion to explore section 3(d) and due to lack of therapeutic efficacy rejected the application. This was upheld by the High Court and Supreme Court. 

Both are cases etched in my memory. Both are cases that have actually helped cancer patients. Something I have always wanted to do.    The Glivec case is also important for the reason that it interpreted the scope of section 3(d) and it is that interpretation that we follow till date. The CL case had interpreted the CL related provisions of compulsory licence that were hitherto considered ‘academic’ and near impossible to achieve.

As an arguing counsel at the High Court of Delhi and the Supreme Court of India, you have represented clients in patent and other litigations. What are some of the unique challenges and opportunities you encounter when arguing before these higher courts?

It is a very interesting and challenging life as an arguing counsel. Firstly, we argue matters on the basis of instructions from the instructing lawyers and basis their briefs. Sometimes their pleading lacks some of the most basic or crucial points that one may need for arguments. But still, we have to make do, plaster the pleading and make out a good case. Second, many times, the briefing counsel is not up to-date with the latest developments in law – resulting therefore in bad planning or taking incorrect steps or filing unwanted applications which may get rejected by the court. Obviously, the instructing counsel and more so -the client are puzzled as to what happened with the outcome. Third, I find that people just show clients a rosy garden which is bit different from real life. So again when I tell them that their case has certain flaws, they are not very happy. Fourth,  some people feel that once a brief is handed over to a senior, their job is over- it is actually the start of the process. As a result, our team has run the extra mile to make sure we have all the tools and ammunition to do well in the court. 

Arguing a matter in court may sound and seem quite glamorous. But behind these glamor filled moments are hours and hours of hard work which of course, is behind the scene and goes unnoticed. It’s with every lawyer. 

But at the end of the day, if we achieve a good outcome, every midnight oil burnt is worth it and we will do it a hundred times over. 

You have been recognized as a visionary in the domain of Intellectual Property Rights. How do you stay updated with the latest trends and dynamics shaping the intellectual property landscape, especially in developing nations?

It is very important to stay updated not only with cases of Indian courts but also of courts in other countries as it gives an idea of the trend. It also gives an insight into what was argued and how the argument was received by the court. So I try and keep case-law reading for weekends or anytime that I find free. I don’t like to waste time and I try to utilise in catching up with case law or technology. The only way to stay updated is to allocate time and in disciplined manner keep reading. I also get invited to do podcasts or talks at various places on various subjects – that also keeps me on my feet. Sometimes we have discussions with groups. All this helps. But self-reading and staying updated is indispensable.

As a TEDx speaker, what was the topic of your talk, and why is it important for you to share your insights and knowledge through platforms like TEDx?

I am a follower of TED talks and have been greatly inspired by these talks. I was very excited to be invited to give a TEDx talk. 

So I thought, I should speak on a topic that would be helpful to one and all- courage and conviction, Its about having the courage to pursue your path despite the negative talk around, despite the discouragement. I think in life as well in any profession, there is a need to pursue your objective or goal with all your might, complete perseverance and passion. There will be obstacles but if you are determined, nothing can stop you. But the determination must be strong and unshakable.  

We have been taught these principles and most of us do apply them in our daily lives and surely do practice them. But it is important to keep reminding ourselves of these principles from time to time so that we stick to the chosen path and don’t deviate. And what better example than our own experiences. 

With burgeoning information on the internet, today’s youth wants to do something, but is often confused or even discouraged if they do not instant success like instant Maggi. 

Hence I talked about my experience, about how I had debilitating injuries and despite that, I managed to survive and move on, rather than mourn over what was lost. I felt that if I could inspire at least one person, I can say, it’s a good beginning. 

You have authored several articles and are a regular speaker at conferences and seminars. Can you share some of the key messages you aim to convey through your writings and speaking engagements?

I have been writing since a very young age. Most of my speaking assignments at conferences and seminars are IPR or other legal topic oriented. Hence through these sessions, I try to spread knowledge – the knowledge that I have gained so far. I think that people attending any session on any topic should find it a good investment of time and effort- and as trainers or speakers it is our responsibility to ensure that their time is well spent. So I usually prepare and try to ensure that whatever topic I speak on throws some new perspectives and the audience is able to gain knowledge. Knowledge is gained by spreading not by keeping it locked. 

Recently, I have authored a chapter on Trade Secrets and it is published by Chambers in 2023. You will find the link at https://practiceguides.chambers.com/practice-guides/trade-secrets-2023/india/trends-and-developments. The chapter summarises the position in India regarding trade secrets. It gives an insight into the existing law and the remedies available within the current framework. 

Surely, with technical progress, everyone would be impacted especially companies and institutions. Its high time we enact a comprehensive law on trade secrets and law should protect confidential information in whatever shape and form. Right now, we have several judicial precedents to protect confidential information. While we are quite successful in protecting breaches of confidentiality by employees, it is always helpful to have a legislation as it imposes confidence in business owners and enables framing of appropriate policies to protect such information. 

With your vast experience in the field of IPR, what advice would you give to fresh graduates who are aspiring to pursue a career in law, particularly in the domain of Intellectual Property Rights?

For fresh law graduates, I would advise that they should initially try all kinds of practice areas. Gain knowledge and not look for instant money. This is a profession not a money spinning business where one expects ROI from day one or year one. It’s a profession, a service to the public. Money will come, slowly but surely. Knowledge is king. 

So one should practice in lower courts, gain experience in courts, tribunals, working or training with solicitors as well as in-house counsels and having gained a general perspective, then, make up your mind whether you want to do litigation or something else. Its each for himself. In this profession, hard work is the only currency that may get you somewhere. There no short-cuts; so one has to have patience and keep working at it. You would attain your gaol sooner or later. If you choose litigation, it is surely a hard life. Even a solicitor’s life is not as simple as you think – every field will have its own twisted path. But one has to enjoy the process, enjoy the profession, satisfy yourself with the happiness and smile that you may bring on someone’s face. That’s the glory and gold coins this profession offers.

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