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Natco Pharma Limited Vs. Bayer Healthcare LLC - (High Court of Delhi) (11 Jul 2019)

A prima facie case has to be made out for mandatory injunction to be granted at interim stage


Intellectual Property Rights

Present appeal by the Defendant is directed against the order passed by the learned Single Judge whereby, the Appellant was restrained from infringing Indian patent IN No. 240207 held by the Respondent/Plaintiff.

The Respondent, which is part of the Bayer Groups of Companies, filed the suit against the Appellant/Defendant for permanent injunction to restrain it from making, using, selling, distributing, advertising, exporting, offering for sale and in any other manner directly or indirectly dealing with any product that infringes the subject matter of the Plaintiff's Indian Patent No. 240207.

Learned Senior counsel appearing for the Defendant/Appellant submitted that, the impugned interim order is contrary to the settled law explained in several decisions of the Supreme Court and present Court in the matter of granting an ad interim injunction. In particular, there is no satisfaction recorded of the Plaintiff having made out a prima facie case or that the balance of convenience is in his favour or that it would suffer irreparable hardship if the injunction is not granted.

Matters involving alleged infringement of patents constitute a separate species of litigation. A further sub-species would be those concerning pharmaceutical patents. This is because the law concerning them under the Patents Act, 1970 and other related legislation has peculiar elements that would have to be kept in view by the Court. Unsurprisingly, therefore, there is a growing volume of Indian case law dealing with the parameters that should weigh with the Court while examining the case of alleged infringement of pharmaceutical patents.

While the parameters that have to generally be kept in view in all suits where interim injunctions are sought would apply in such cases as well, they would indubitably involve other parameters which have been discussed in a large number of decisions including the decision that both parties have relied upon.

Each case of alleged infringement of patent, particularly a pharmaceutical patent, would turn on its own facts. It is not possible to conceive an 'across-the-board' blanket approach that would apply to all such cases, where as a matter of routine at the first hearing there would be a grant of injunction in favour of the Plaintiff. The decision in the application of interim injunction has to necessarily indicate the view of the Court on the three elements mentioned herein before and the additional features when it involves a case of alleged infringement of a patent, and in particular, a pharmaceutical patent. It is not the length of the order or its precise wording that matters.

The decision in Dorab Cawasji has been followed by the Supreme Court in its recent judgment in Tek Singh v. Shashi Verma, in which it clarified that "when a mandatory injunction is granted at the interim stage much more than a mere prima facie case has to be made out."

The impugned order which restrains the Defendant from infringing the suit patent does not lend itself to sufficient clarity. Although, the Appellant/Defendant has understood it to mean that the Defendant is restrained from manufacturing, selling its product in the market, it would have helped, if the order specified what the Defendant can or cannot do.

This Court hastens to clarify that it should not be understood as having expressed any opinion one way or the other on the respective contentions of the parties. A reading of the impugned order does not reflect a consideration of the above issues placed before the Court by the parties. It must be added that, the broad aspects of the submissions are indeed contained in the plaint, pleadings and documents which were available to the learned Single Judge when the impugned interim order was passed. The Court is of the view that, the impugned interim order requires to be set aside and the application for interim injunction be heard once again by the learned Single Judge on merits.

Relevant : Dorab Cawasji Warden vs. Coomi Sorab Warden and others MANU/SC/0161/2014, Tek Singh vs. Shashi Verma and Ors. MANU/SC/0169/2019


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