Delhi High Court - Orders
Eli Lilly And Company & Ors vs Bryan Pharmaceuticals Through Its ... on 29 March, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:30.03.2022
23:01:33
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 439/2021 & I.As. 11888-89/2021, 15655/2021,
15931/2021, 4806/2022
ELI LILLY AND COMPANY & ORS. ..... Plaintiff
Through: Mr. Pravin Anand, Ms. Prachi
Agarwal & Ms. Mishthi Dubey,
Advocates
versus
BRYAN PHARMACEUTICALS THROUGH ITS PROPRIETOR
MR. LAXMI KAND PAL / NAVNEET KAND PAL
& ORS. ..... Defendants
Through: Mr. Kartik Bhagat, Advocate for D-3
& D-6
Mr. Sushant Kumar, Adv. for D-7
Mr. Vikas Kakkar, Mr. Sarthak
Dubey, Ms. Anshika Dubey &
Ms.Sneha Choudhary, Advocates for
D-8 & D-18
Mr. Tahir A.J. & Mr. Deepanshu
Nagar, Advocates for D-12
Ms. Rhea Dube, Advocate for D-19
Mr. Ankur Vyas, Mr. Shashikant
Yadav & Mohd. Shahid Khan,
Advocates for D-21
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 29.03.2022
1. This hearing has been done through hybrid mode.
2. The present suit is one seeking permanent injunction restraining infringement of Indian Patent No. 270765 (hereinafter "IN'765") along with rendition of accounts, damages, delivery up, etc. in respect of 'AZETIDINE AND CYCLOBUTANE DERIVATIVES AS JAK INHIBITORS' CS (COMM) 439/2021 Page 1 of 6 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33 for the pharmaceutical preparation of baricitinib, sold under the brand name "Barinat" which is used for the treatment of Janus Kinase associated (JKA) diseases. The product is used for treatment of Rheumatoid Arthritis. The term of the said patent is till 10th March, 2029.
3. It is the case of the Plaintiffs that IN'765 vests exclusive rights in the Plaintiffs in respect of the said product in terms of Section 48 of the Patents Act, 1970. However, since the said product was found to be effective to treat COVID-19 patients during the pandemic, eight companies in India were permitted by the Plaintiffs, to manufacture and sell the said product in India in May 2021, pursuant to voluntary license agreements. One such company was Natco Pharma Limited/Defendant No.21 (hereinafter "Natco"). Though the product is used for treatment of Rheumatoid Arthritis, in combination with Remdesivir, the product was being administered to certain COVID-19 patients. Licenses were given to the following companies:
1) Cipla Ltd.
2) Lupin Ltd.
3) Sun Pharmaceutical Industries Ltd.
4) Dr Reddy's Laboratories Ltd.
5) MSN Laboratories Pvt. Ltd.
6) Torrent Pharmaceuticals Ltd.
7) Natco Pharma Limited.
8) BDR Pharmaceutical International Pvt Ltd.
4. As per the said licenses, the said product was to be manufactured and used only for the purpose of treatment of COVID-19 and not for the original purpose i.e., for treatment of Rheumatoid Arthritis. However, the Plaintiffs came to know through various listings on the Indiamart portal operated by CS (COMM) 439/2021 Page 2 of 6 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33 Indiamart Intermesh Limited/Defendant No.19 (hereinafter "Indiamart") that several sellers i.e., Defendant Nos. 1 to 18, stated to be wholesalers/distributors/pharmacies/e-commerce entities, were offering the "Barinat" products for sale on e-commerce platforms. Further, the said Defendants were also indulging in exports of the said product, as the said products are stated to be available for sale in regions outside India also.
5. The present suit came to be filed in view of the said conduct of the Defendants. Vide order dated 15th September, 2021, an ex-parte injunction was granted against Defendant Nos. 1 to 20 for marketing/selling "Barinat" in any form whatsoever, except for the treatment of COVID-19. The operative portion of the order dated 15th September, 2021, reads as under:
"Till the next date of hearing, there shall be an ad interim injunction restraining Defendants 1 to 20 from marketing or selling Barinat, in any form whatsoever, except for the treatment of COVID- 2019, on any virtual platform or physically across the counter. There shall also be an ad interim stay on export of Barinat, by the said defendants, till the next date of hearing."
6. Mr. Pravin Anand, ld. counsel appearing for the Plaintiffs, submits that the written statements/replies filed by some of the Defendants reveal a peculiar situation wherein several of the Defendants take the stand that they had not listed the product "Barinat" on the Indiamart website and in fact, the said listing has been made by the officials of Indiamart, without any consent in any form having been obtained from the other Defendants. For instance, in the written statement filed by Defendant No. 1 at paragraph 16, the name of an official of Indiamart is disclosed as one Ms. Nandini, who is stated to have admittedly uploaded the pictures of the product in the listing CS (COMM) 439/2021 Page 3 of 6 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33 of "Barinat". The same position also holds good for Defendant No. 3 and some of the other Defendants who have filed written statements/replies to the applications in the present suit.
7. Indiamart, however, appearing through Ms. Dubey, ld. Counsel, takes the position that it is a pure intermediary, not involved in the listing of these products on its platform. However, ld. counsel submits that she has not received copies of the replies/written statements in which the averments have been made and seeks copies of the same to address the Court on them. Further, Ms. Dubey submits that if the impugned URLs are given to Indiamart, it would take down the said URLs immediately.
8. It is also pointed out by the counsels that Natco, the manufacturer, has placed its stand on record to the following effect:
"Dear Mr. Anand We refer to your email of 16.06.2021. Thank you for bringing the online postings regarding Barinat™ to our attention. We are writing on the instructions of Natco to address the concerns spelt out in your email.
1. Natco reiterates and confirms that the licensed product (Barinat™ 1mg, 2mg and 4mg) are commercialised strictly according to the terms of the license given by CDSCO, viz. in combination with Remdesivir for the treatment of suspected or laboratory confirmed Covid-19 in hospitalised patients.
2. Natco does not and is not offering, advertising, or selling Barinat™ and has not authorised Barinat™ for treatment of Rheumatoid Arthritis.
3. The entities named on the screenshot of 1mg.com, indiamart.com etc. shared by you are not authorised distributors or stockists of Natco. Needless to add, Natco has no control over third parties offering products on such websites. Natco has not authorised these entities to offer Barinat™ for Rheumatoid Arthritis.
4. Natco is writing to these websites informing them that CS (COMM) 439/2021 Page 4 of 6 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33 Barinat™ is approved only for Covid-19 indication as per CDSCO approvals and asking the websites to take remedial action such that its' product is not mislabelled online. The correspondence with the websites through their contacts given online and the responses of such websites will be shared with Lilly to its authorised contacts periodically.
5. As Lilly ought to be aware, the packaging of Barinat™ (all doses) carries a clear label indicating that it is approved only for Covid-19 treatment. The product leaflet also clearly states that Barinat™ is approved only for Covid-19 treatment.
6. Natco's website carries a clear note that Barinat™ is only for Covid-19 treatment in accordance with CDSCO approved indicia."
9. Under these circumstances and in the light of the above oral submissions, as also basis the replies and written statements filed, the following directions are issued:
(1) The Plaintiff shall, within one week, give all the details of the URLs which show advertising of the product "Barinat" or any other baricitinib product on the Indiamart portal. Upon receiving the said information, within 36 hours, the same shall be taken down by Indiamart.
(2) A specific affidavit shall be filed by Ms. Nandini, official of Indiamart and Mr. Neeraj Arora, the authorised signatory of Indiamart, as to the mode and manner in which these products came to be listed on the Indiamart website. Considering the stand of the other Defendants that the said listings were in fact made unauthorisedly by Indiamart on its own, on the next date of hearing, both Ms. Nandini and Mr. Neeraj Arora shall remain present in Court for recording of their statements.CS (COMM) 439/2021 Page 5 of 6 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33
(3) The affidavits shall be filed by Indiamart within four weeks, with advance copies to counsels for all the Defendants as also to the counsel for the Plaintiff.
(4) The authorized representatives of Defendant No. 1, 3 and any other Defendants who take the same stand, shall also remain present in Court for recording of their statements.
10. In the meantime, if any of the Defendants wish to explore the possibility of an amicable resolution of their dispute with the Plaintiff, the dispute qua such Defendants is referred to the Delhi High Court Mediation and Conciliation Centre (hereinafter "Mediation Centre"). List before the Mediation Centre on 5th April, 2022 at 2 p.m.
11. Parties to appear before the Mediation Centre either virtually or physically, subject to convenience of all concerned. It shall be ensured that competent officials on behalf of the Plaintiff and the Defendants shall be present in the mediation proceedings
12. Let rejoinder be filed by Indiamart in I.A.15931/2021, being the application filed by Indiamart under Order XXXIX Rule 4 CPC, within four weeks, with advanced copy being served on all other parties.
13. Let reply be filed by Indiamart to I.A.11889/2021, being the Plaintiff's application seeking discovery under Order XI Rule 1(6) CPC, within four weeks, with advanced copy being served on all other parties.
14. List for further proceedings in the applications on 25th May, 2022.
PRATHIBA M. SINGH, J.
MARCH 29, 2022/rd/ms CS (COMM) 439/2021 Page 6 of 6