HC expounds: Cross-Examination of Expert Witness to be Allowed in Highly Technical Cases under Patents Act,1970

22 Apr 2019

Categories: Intellectual Property News

April 23,2019:

In a recent judgment, the High Court of Delhi has held that in highly technical cases, cross-examination of witnesses may be allowed.

On February 22, 2019, the High Court delivered the judgment in the case of Onyx Therapeutics v. Union of India answering the issue of ‘whether the Patentee can cross-examine the expert witness (es) of the Opponent in a post-grant opposition under the Patents Act, 1970 and the rules framed thereunder.’

Answering in affirmative, the Court held that, “in a proceeding wherein 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.”

Prior to this judgment, there was no provision in law or any inherent right of the Patentee to cross-examine any witness. This issue has been the subject of consideration by the Courts numerous times over the past years, and Courts have uniformly negatived the contention of parties claiming a right of cross-examination.

In the cases of Swastick Pipes Ltd. v. T.T. Industries & Ors. [2000 PTC 66] and Financial Times Ltd. v. Times Publishing House Ltd. [234 (2016) DLT 305], it was held that the request for cross-examination is to be sparingly granted since affidavits contain facts and not opinions of persons. Even though there is no absolute bar for cross-examinations, there is no exclusive and vested right to cross-examine a deponent either.

In the present matter, the Delhi High Court considered the above-mentioned judgments and opined that such a limitation is applicable only when the deponent presents facts. In cases that are highly technical in nature, the cross-examination of expert witnesses is crucial because they present their opinions regarding different documents, not facts.

It was further held by the Court that the adjudicating body cannot review its decision suo moto.

The Office of the Controller General of Patents, Designs and Trade Marks, DIPP had first granted the Petitioner the permission to cross-examine the witnesses; but at a later stage, it disallowed the same by reviewing its decision suo moto. The Court held such an act to be without jurisdiction and a manifest error in law.