Who Must Pay for Appointment of Scientific Advisors? Vittal Mallya Scientific Research Foundation Vs. Indfrag Limited

First Publication Date: 9th December 2009

The case related to infringement of a patent relating to a process concerning the double metal salt of HCA. During the pendency of the suit, the court ordered for the analysis of the processes of the product called Double Metal Salt of Hydroxycitric Acid of the parties in the case by the Department of Chemistry of IIT, Madras. The objective of the analysis was to check if the alleged infringer’s process was different from that of the patent holder. The Court ordered that the parties in the case have to bear the cost of the analysis report. Thereafter, the patent holder filed three applications for further analysis to be carried out by IIT, Madras.

After receiving the directions of the court, IIT, Madras requested the patent holder through a letter to pay necessary expenses to carry out analysis using instruments outside the institute. However, the patent holder refused to pay and cited Section 115(2), which provides that payment for scientific advisors must be made by the Court out of money given by the parliament.

Section 115 provides as follows: “Scientific advisers – (1)In any suit for infringement or in any proceeding before a Court under this Act, the Court may at any time, and whether or not an application has been made by any party for that purpose, appoint an independent scientific adviser, to assist the Court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.
(2) The remuneration of the scientific adviser shall be fixed by the Court and shall include the costs of making a report and a proper daily fee for any day on which the scientific adviser may be required to attend before the Court, and such remuneration shall be defrayed out of moneys provided by Parliament by law for the purpose.”

The Court stated that IIT, Madras was appointed on the request of the parties and not for assisting the Court as a scientific advisor. Therefore, according to the Court, it would not be required to make any payment. It stated that the parties were directed to make the payment for the analysis and by not objecting to it they agreed to make the payment to IIT, Madras for the analysis. The Court was upset with the patent holder and rejected the applications for further analysis and stated that the analysis ordered was not required in the first place. It also apologized to IIT, Madras for the inconvenience.

As per the Court’s decision, an expert appointed to provide a report based on the request of the parties will not be considered as a scientific advisor for assisting the Court. Therefore, the Court will not be required to pay the advisor. The Court’s reasoning is questionable and may not be the right interpretation of the section.

Generally, scientific experts are appointed to help the court understand scientific issues relevant for making a decision in a case. Such experts provide necessary scientific inputs based on questions determined by the Court in order to help the Court analyze the facts in the light of the law and give the decision. The Court may decide to appoint an advisor as and when it deems fit. Such an appointment may also be triggered on the request of the parties. Once an advisor is appointed to give scientific advise, the Court must make the payment as per Section 115 irrespective fo the manner in which the advisor has been appointed. Having said that, the Court has the discretion to decide whether it needs an advisor under the circumstances.

Having said that, the counsels for the patent holder in the present case behaved in an unprofessional manner by not objecting to the directions of the Court when they were issued and by writing to IIT, Madras without approaching the Court. I think the act of the counsel was not a good move. Though it may have been strategically triggered to achieve an end, it can be considered to be behaviour not appreciable by legal professionals.

Note: The opinion provided in this post is the personal opinion of the author and not of Brain League. Brain League or its officers shall not be made liable for any opinion expressed in the post.

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