The question whether cross examination is a discretionary remedy or a substantive right has come up before the Delhi High Court in context of post-grant oppositions filed against Novartis by three different Respondents with Controller General of Patents being pleaded as Respondent no 1, a) Indian Pharmaceutical Alliance (IPA) b) Micro Labs Limited and c) IPCA Laboratories Ltd. W.P.(C)-IPD 50/2025, W.P.(C)-IPD 51/2025, and W.P.(C)-IPD 52/2025 respectively.

The common issue in all three cases is the denial of cross examination of the expert witnesses by the Controller to the Novartis.

Novartis Arguments

1. That the right to cross-examine the opponent’s expert witnesses is a substantive right under Section 79 of the Patents Act, 1970, and not merely a matter of discretion for the Controller.
2. Novartis relied on case law, especially Onyx Therapeutics v. Union of India (both Single Judge and Division Bench decisions) and Natco Pharma Ltd. v. Union of India, to assert that cross-examination is a matter of right when expert affidavits are filed against the validity of a patent.
3. That denying cross-examination would cause irreparable injury and prejudice to the Novartis, violating principles of natural justice.
4. Novartis explained that the request for cross-examination was made within a reasonable period. They argued that the need for cross-examination arose only after consulting their own experts and reviewing the opponent’s expert affidavits. Further, the request could not have been made earlier, as it was only after filing rebuttal evidence and consulting their experts that the necessity for cross-examination became apparent.
5. Novartis argued that the denial of cross-examination would violate the principles of natural justice, as it would deprive them of a fair opportunity to challenge the adverse.
6. Novartis argued that the Controller should have decided the cross-examination request (Rule 128 petition) before proceeding to hear the post-grant opposition on merits.
7. They asserted that the Controller’s decision to defer the cross-examination request and proceed with the hearing on merits was contrary to Rule 62 of the Patent Rules and Section 79 of the Act.
8. Novartis contended that any delay in the proceedings was not attributable to them, but rather to the Controller and the opponents, who filed further evidence at a late stage.
9. They argued that delay cannot be used as a ground to deny the substantive right of cross-examination, and that the process could be completed within a stipulated time without causing prejudice to the opponents.

Court Reasoning for Rejecting Novartis request for Cross-Examination

1. Timing and Waiver of Cross-Examination Right
   1. The Court found that Novartis was served with the opponent’s expert affidavits on 08th July 2024 but did not request cross-examination at that time.
   2. Instead, Novartis objected to the admissibility of the evidence and sought leave to file rebuttal evidence, which was granted by the High Court in an earlier writ petition.
   3. The Court emphasized that the right to seek cross-examination must be exercised at the earliest opportunity-typically after service of the expert’s evidence and before filing rebuttal evidence.
   4. By choosing to file rebuttal evidence and not requesting cross-examination until much later (almost after a year), Novartis waived its right to cross-examine the opponent’s experts.
2. Distinction from Precedent (Onyx Therapeutics Case)
   1. Novartis relied on the Division Bench judgment in Onyx Therapeutics v. Union of India to argue for an absolute right to cross-examination.
   2. The Court distinguished the facts: in Onyx, the request for cross-examination was made promptly, along with the reply to the opposition, and was reiterated at every stage.
   3. In contrast, Novartis only sought cross-examination after the process had advanced significantly, and after the High Court had already set timelines for the proceedings.
3. Natural Justice and Adequate Opportunity
   1. The Court held that the principles of natural justice were satisfied because Novartis was given a full opportunity to file rebuttal evidence.
   2. The Court rejected the argument that denial of cross-examination at a late stage amounted to a violation of natural justice, noting that procedural fairness does not mean parties can delay proceedings by raising objections late.
   3. The Court stated: “The principles of natural justice are intended to ensure fairness, and not to serve as a sword of convenience to be wielded at the party’s whims and fancies.”
4. Conduct and Abuse of Process
   1. The Court criticized Novartis for abstaining from the hearing on 20.08.2025, stating that a party who is aware of a scheduled hearing and chooses not to attend cannot later allege a violation of natural justice.
   2. The Court found that the Rule 128 petition (request for cross-examination) was a dilatory tactic intended to delay the proceedings, especially since the patent was nearing expiry.
   3. The Court also noted that allowing cross-examination at this stage would nullify the work already done by the Opposition Board and disrupt the expeditious disposal mandated by the High Court.

Conclusion

1. The Court concluded that Novartis had been given every reasonable opportunity to present its case, including filing rebuttal evidence.
2. The right to cross-examination, while important, is not absolute and must be exercised diligently and at the proper stage.
3. The writ petitions were dismissed, and the Controller’s orders were upheld.

Our comment

The decision reinforces that timely assertion of procedural rights is crucial, delay may result in waiver. In this case Novartis did not request cross-examination for over a year after the opponent’s expert affidavits were served thereby consciously choosing to file rebuttal evidence and not seeking cross-examination at the appropriate stage. Thus, it resulted in Novartis deemed waiver of its right to cross-examine.