Delhi High Court
F.Hoffmann-La-Roche Ltd. & Anr vs Natco Pharma Limited on 2 February, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd February, 2017.
+ CS(COMM) 29/2016
F.HOFFMANN-LA-ROCHE LTD. & ANR. ..... Plaintiffs
Through: Mr. Pravin Anand, Mr. Shrawan
Chopra, Mr. N. Mahabir, Ms. Prachi
Agarwal & Mr. Pundreek Dwivedi,
Advs.
Versus
NATCO PHARMA LIMITED ..... Defendant
Through: Mr. Anand Grover, Sr. Adv. with Mr.
Gaurav Barathi, Mr. Vikramjeet, Ms.
Priyam Lizmary Cherian & Ms. Neeti
Aggarwal, Advs.
AND
+ CS(COMM) 946/2016
F HOFFMANN-LA ROCHE LTD & ANR ..... Plaintiffs
Through: Mr. Pravin Anand, Mr. Shrawan
Chopra, Mr. N. Mahabir, Ms. Prachi
Agarwal & Mr. Pundreek Dwivedi,
Advs.
Versus
DR. REDDY'S LABORATORIES LTD & ANR ..... Defendants
Through: Ms. Anusuya Nigam & Mr. Tushar
Bhatnagar, Advs. for D-1.
Mr. Anand Grover, Sr. Adv. with Mr.
Gaurav Barathi, Mr. Vikramjeet, Ms.
Priyam Lizmary Cherian & Ms. Neeti
Aggarwal, Advs. for D-2.
CS(COMM) Nos.29/2016 & 946/2016 Page 1 of 17
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
O.A. No.13/2017 in CS(COMM) No.29/2016 & O.A. No.14/2017 in
CS(COMM) No.946/2016
1. The Chamber Appeal in both the suits has been preferred by Natco
Pharma Ltd. (Natco) which is the sole defendant in CS(COMM) No.29/2016
and defendant No.2 in CS(COMM) No.946/2016 and are directed against the
common order dated 30th January, 2017 of the Joint Registrar, allowing IA
No.854/2017 and IA No.849/2017 of the plaintiffs, both under Order VII
Rule 14 of the Code of Civil Procedure, 1908 (CPC) in the two suits, for
filing additional documents.
2. The senior counsel for Natco and the counsel for plaintiff F.
Hoffmann-La Roche Ltd. (Hoffmann) in both suits, have been heard at
length.
3. Hoffmann filed CS(OS) No.2465/2009 (new number CS(COMM)
No.29/2016) to restrain Natco from infringing the drug patent of Hoffmann.
Hoffmann thereafter filed CS(OS) No.81/2010 (new number CS(COMM)
No.946/2016) to restrain Dr. Reddy's Laboratories Ltd. (Dr. Reddy) and
Natco, again from infringing the same patent. The need for impleading
Natco in the second suit arose because Natco was supplying Dr. Reddy the
active pharmaceutical ingredient.
4. Natco as well as Dr. Reddy filed counterclaim in the suits, impugning
the patent in favour of Hoffmann.
5. Separate issues were framed in the two suits and the counterclaims
therein. Subsequently, the suits were consolidated and Hoffmann
CS(COMM) Nos.29/2016 & 946/2016 Page 2 of 17
commenced leading its evidence. The first witness of Hoffmann has been
examined and cross-examined by Dr. Reddy as well as Natco. Hoffmann
thereafter filed affidavit by way of examination-in-chief of Dr. Alexander
James Bridges, who the senior counsel for Natco fairly agrees, is a renowned
expert in the field (and is not an employee or agent of Hoffmann).
Hoffmann, along with the said affidavit, filed about 14 documents and which
had not been filed by Hoffmann at any earlier stage.
6. IA No.10698/2016 and IA No.10685/2016 were filed by Natco in the
respective suits averring that a portion of the deposition of Dr. Bridges in the
affidavit by way of examination-in-chief was beyond the pleadings of
Hoffmann and seeking striking off of the said paragraphs of the affidavit by
way of examination-in-chief. The said applications are still pending
consideration and are listed for hearing on 15th May, 2017.
7. Since there was no stay of recording of evidence during the pendency
of the aforesaid applications, the recording of evidence of Dr. Bridges
commenced and his cross-examination by Natco stands concluded and he is
now under cross-examination by Dr. Reddy.
8. At this stage, Hoffmann filed IA No.854/2017 and IA No.849/2017
supra seeking permission of the Court for taking on record 10 out of the
aforesaid 14 documents filed for the first time along with the affidavit by
way of examination-in-chief of Dr. Bridges and which applications have
been allowed by the learned Joint Registrar vide the order impugned in these
chamber appeals.
9. The principal contention of the senior counsel for Natco while
impugning the order of the Joint Registrar is that the documents aforesaid are
CS(COMM) Nos.29/2016 & 946/2016 Page 3 of 17
in support of the part of the deposition of Dr. Bridges which is beyond
pleadings of Hoffmann and the Joint Registrar, by allowing the applications
of Hoffmann to take the said documents on record, has committed
impropriety of procedure. It is contended by the senior counsel for Natco
that the learned Joint Registrar has thereby pre-empted the decision on the
applications aforesaid of Natco and / or made them infructuous. It is also the
contention of the senior counsel for Natco that the said fact was brought to
the attention of the Joint Registrar, who during the hearing indeed enquired
from the counsel for Hoffmann as to how the applications of Hoffmann
could be decided first, but in the order dictated later in the afternoon, has
allowed the applications of Hoffmann.
10. The counsel for the Hoffmann has not controverted the impropriety to
the aforesaid extent. He however states that it was his submission before the
Joint Registrar that since Dr. Bridges is in India for recording of his cross-
examination by Dr. Reddy, Hoffmann‟s applications be decided subject to
the outcome of the applications filed by the Natco. He today also states that
the order impugned in these chamber appeals can be subject to the outcome
of the applications of Natco.
11. The counsel for Dr. Reddy at this stage informs that Dr. Reddy‟s stand
before the Joint Registrar on 30th January, 2017 was that they are not
objecting to the said 10 documents subject to the additional documents if any
filed by them along with the deposition of their expert being also taken on
record and to which the counsel for Hoffmann had given no objection. The
counsel for Hoffmann confirms.
12. In the aforesaid state of affairs and to put the controversy at rest, with
CS(COMM) Nos.29/2016 & 946/2016 Page 4 of 17
the consent of the counsels, IA No.10698/2016 and IA No.10685/2016
aforesaid of Natco have been taken up for consideration today so that there is
no impediment to the cross-examination scheduled also for today of Dr.
Bridges.
13. The contention of the senior counsel for Natco is that Natco in its
counter-claim has challenged the patent in favour of Hoffmann on the
ground as provided inter alia in Section 64(1)(f) of the Patents Act, 1970 i.e.
the invention claimed in any claim of the complete specification being
obvious and not involving any inventive step. The senior counsel for Natco
has taken me through the pleadings in the counterclaim of Natco and the
written statement of Hoffmann thereto. Hoffmann in its written statement to
the counterclaim has pleaded as to why the invention is not obvious. Dr.
Bridges in his affidavit by way of examination-in-chief, in the paragraphs to
which objection is taken, has, besides the reasons given in the written
statement to the counterclaim of Natco, also given the reason of „polarity‟
and „toxicity‟. Dr. Bridges has deposed that the invention is not obvious
because polarity and toxicity would have been taken into consideration by
the person skilled in the art and were not taken into consideration. Hoffmann
in its written statement to the counterclaim of Natco, the counsel for
Hoffmann fairly admits, did not plead the reason of „polarity‟ and „toxicity‟.
Natco in its replication thereto thus had no occasion to meet the same.
14. The senior counsel for Natco contends that Natco, while cross-
examining Dr. Bridges, has not cross-examined him on the said aspects
because its applications aforesaid were pending and because the admitted
principle of law is that no evidence beyond pleadings can be seen; that to
CS(COMM) Nos.29/2016 & 946/2016 Page 5 of 17
allow Dr. Bridges to now give the reasons of polarity and toxicity as a
defence to the challenge by Natco to the patent on the ground of the same
being obvious, would be beyond the pleadings and no finding on the basis of
any evidence led beyond the pleadings can be returned.
15. Per contra, it is the contention of the counsel for Hoffmann i) that Dr.
Bridges is an independent expert and though Hoffmann in the written
statement to the counterclaim had given reasons to meet the challenge to the
patent but Dr. Bridges as an independent expert is always entitled to, on the
basis of his own examination, research, experience and expertise, add
reasons thereto; ii) that Natco in its cross-examination of Dr. Bridges has
already cross-examined him on the aspect of „toxicity‟ and „polarity‟ and for
this reason also is now estopped from objecting thereto; iii) the learned Joint
Registrar, in the impugned order has still granted opportunity to Natco to
cross examine Dr. Bridges further; iv) that Natco is still to lead its own
evidence and can in its evidence meet the deposition to the aforesaid effect
of Dr. Bridges.
16. The senior counsel for Natco in rejoinder has controverted that Natco
has cross-examined Dr. Bridges on the part of the deposition objected to in
the applications which were pending consideration and rather refers to the
question put to Dr. Bridges and in answer whereto he has admitted that there
is no reference to toxicity in the written statement of Hoffmann to the
counterclaim of Natco. It is further contended that Section 115 of the
Patents Act provides for a independent expert to be appointed by the Court
and Dr. Bridges or for that matter any other expert examined by a party to a
litigation cannot be labelled as an independent expert and is necessarily a
CS(COMM) Nos.29/2016 & 946/2016 Page 6 of 17
witness on behalf of that party to the litigation.
17. On enquiry, it is informed that the subject patent has expired and the
claim now in the suits is for damages only.
18. The counsels are also ad-idem that in the Patents Act, there is no
presumption of validity of the patent, though the onus to prove a ground for
revocation thereof would be on the party challenging the grant of patent. I
may notice that vide Section 104-A, in a suit for infringement of a process
patent, the Court may direct the defendant to prove that the process used by
him is different i.e. put the burden of proof on the defendant, if it is not in
dispute that the resultant product is identical. Reference can be made to
judgment dated 9th December, 2011 of the High Court of Karnataka in OS
No.1 of 2004 titled National Remedies Pvt. Ltd. Vs. Indian Herbs Research
& Supply Co. Ltd.
19. On enquiry, whether any specific issue qua the counterclaim,
crystallising the ground on which Natco has sought revocation of the patent,
has been framed, the counsels inform that only a general issue i.e. as to
whether there is any merit in the challenge to the patent, has been framed.
20. I have further enquired as to why Hoffmann, which is defending the
challenge to the patent, has led evidence first on the validity of the patent,
before even Natco has led its evidence on the same.
21. The counsel for Hoffmann states that since Dr. Bridges was to be
examined by Hoffmann as a witness to prove its claim in the suit of
infringement on the part of Natco and Dr. Reddy, and since it is difficult and
expensive to procure the presence of such an eminent expert repeatedly, a
composite affidavit by way of examination-in-chief of Dr. Bridges, not only
CS(COMM) Nos.29/2016 & 946/2016 Page 7 of 17
on the aspect of infringement but also as a defence to the validity of the
patent, has been filed and he has been tendered as witness on both aspects.
22. The senior counsel for Natco points out that Dr. Bridges‟s affidavit is
only on the aspect of validity of the patent and not on the aspect of
infringement.
23. The counsel for Hoffmann agrees.
24. Rather, the senior counsel for Natco states that the defence to the
claim for infringement also is the invalidity of the patent.
25. I am unable to agree with the contention of the counsel for Hoffmann
that an expert, even if not in employment of the party litigant, can depose
beyond the pleadings of the party litigant presenting him as a witness or even
if so deposes, his evidence beyond pleadings can be considered.
26. Such an expert remains a witness of the party litigant examining him
and whom the opposite party litigant has a right to cross-examine. Merely
because he is an expert, does not change the adversarial nature of the
procedure or make his deposition inquisitorial. The party litigant examines
such expert only because his expert opinion, even if unbiased, supports that
party litigant and because Section 45 of the Evidence Act, 1872, when the
Court has to form an opinion upon a point inter alia of science, makes the
opinion on that point of persons skilled in such science, a relevant fact. I am
yet to come across a party litigant examining an expert whose opinion is
against the claim of that party before the Court. It was also observed by the
Supreme Court in Gulzar Ali Vs. State of Himachal Pradesh (1998) 2 SCC
192. Had the expert opinion of Dr. Bridges, after carrying out tests, analysis,
study, been that the patent registration of Hoffmann is invalid or is obvious
CS(COMM) Nos.29/2016 & 946/2016 Page 8 of 17
or lacks inventive steps, I doubt Hoffmann would have presented him as its
witness. It is a different matter that in cross-examination dent is caused to
the testimony in favour of party litigant examining the said expert.
27. The adjudication which the Court in such suits and counterclaims
therein is required to make inter alia is, whether Natco is not liable for
infringement because the patent of which Hoffmann claims infringement is
not an "invention" within the meaning of Section 3 of the Patents Act, being
obvious and not involving an inventive step having regard to what was
publicly known. Needless to state that adjudication of such a question in a
suit proceeding has to be by following the procedure prescribed in the CPC.
Under the CPC, the said question would arise for adjudication only when has
a basis / foundation in the pleading in the suit. Order VI Rule 2 of CPC
requires pleadings i.e. plaints and written statement to contain material facts
on which a party pleading relies for his claim or defence. Order VI Rule 4 of
CPC provides that in cases in which particulars are necessary, shall be stated
in the pleading. Order VII Rule 1 of CPC requires a plaint (as a counter-
claim is) to contain the facts constituting the cause of action. Thus, a party
litigant defending a claim for infringement of patent on the ground of the
patent being liable to revoked on one of the grounds under Section 64 of the
Act would be required to plead particulars of that ground and which, in the
case of ground under Section 64(1)(f) being invoked would be reasons why
the invention got registered as a patent is not an invention within the
meaning of Section 2(j) of the Patents Act (i.e. a new product or a process
involving an inventive step capable of industrial application), why it is not an
inventive step within the meaning of Section 2(ja) of Patents Act (i.e. why it
does not involve a technical advance as compared to existing knowledge and
CS(COMM) Nos.29/2016 & 946/2016 Page 9 of 17
is not obvious to a person skilled in the art). Merely pleading that it is
obvious and does not involve inventive step would not suffice.
28. Similarly, a written statement to such counterclaim would require the
patentee to plead why the invention got registered as patent is not or would
not be obvious to the person skilled in the art and as to why it is inventive.
Merely pleading that it is not obvious and / or it entails an inventive step
would not constitute a defence.
29. CPC, enacted more than a century ago, though provides form of
pleadings and expressly requires particulars to be given of the pleas of
misrepresentation, fraud, breach of trust, wilful default, undue influence
(Order VI Rule 4 of CPC) but such forms are not found to deal with a
pleading for revocation of patent. Perhaps such suits were not even
envisioned then. However, Order VI Rule 4 CPC also contains a general
provision as noticed above and pleading of particulars is found to be
necessary in such suits. Without the plaintiff in a suit in which counter-
claim for revocation of patent has been preferred knowing from the counter-
claim the grounds on which revocation of the patent is sought and as in this
case, why the invention patented is claimed to be obvious and lacking in
inventive step, the plaintiff cannot effectively meet the said challenge.
Similarly, without such plaintiff in the written statement to the counter-claim
for revocation disclosing and pleading why the grounds for revocation do not
exist and as in this case, why the invention was / is not obvious and why the
patent is indeed an inventive step, the counter-claimant cannot lead evidence
in support of the claim for revocation.
30. I have in Budh Singh Vs. Raghubir Singh MANU/DE/3871/2015, in
CS(COMM) Nos.29/2016 & 946/2016 Page 10 of 17
the context of a challenge to a document claimed to be the validly executed
last Will of the deceased, held that though the onus to prove the Will may be
on the propounder thereof but a challenger to the Will is required to, in the
pleading, specifically plead the grounds on which a challenge is sought to be
made to the Will so as to let the propounder of the Will know the grounds on
which the Will is contested, so as to be in a position to lead evidence to
dispel such grounds. A challenger to the Will is not allowed to, without
taking any pleading or any specific grounds of challenge, spring surprises
and at the stage of arguments contend that this has not been proved or that
has not been proved.
31. The same principles would apply, in my view, to a suit entailing a
claim for revocation of patent. I find at least one coordinate bench of this
Court to have in Novartis AG Vs. Cipla Ltd. (2015) 216 DLT 689 held it to
be settled law that the challenge to the patent must be specifically pleaded
and the defendant must deliver the particulars of objection on every ground
on which its validity is challenged and to include such particulars which will
clearly define every issue.
32. Not only are the pleadings to contain such particulars but in my
opinion, in such a suit, framing of a general issue "whether the patent is
liable to be revoked?" is as good as not framing an issue and allowing trial to
proceed without framing of issues. CPC has provided for issues to be
framed in a civil suit and framing of issues is not without purpose. Without
framing of issues, neither would the parties to the litigation know what they
are required to prove or disprove nor would the Court at the time of decision
know what is for adjudication and on what to return findings. It would lead
CS(COMM) Nos.29/2016 & 946/2016 Page 11 of 17
to an unguided trial which may even result in repeated trials with the losing
party, wiser in retrospect, contending that the real controversy has not been
adjudicated. Supreme Court, in Kalyan Singh Chouhan Vs. C.P. Joshi
(2011) 11 SCC 786, held that the object of framing issues is to
ascertain/shorten the area of dispute and pinpoint the points required to be
determined by the Court, so that no party at the trial is taken by surprise. It
was further held that it is the issues framed and not the pleadings that guide
the parties in the matter of adducing evidence. I have in Kawal Sachdeva
Vs. Madhu Bala Rana 2013 SCC OnLine Del 1479 held (i) that the Court is
required to apply its mind and understand the facts before framing of issues
and will not be justified in adopting a hands off policy at the stage of framing
of issues; and, (ii) that Order XIV of CPC provides for an issue to be framed
only on material proposition of fact or law affirmed by one party and denied
by other party and not on whatsoever pleas are contained in the pleadings. It
is on account of these principles that I say that framing a general issue as
"whether the patent is liable to be revoked" serves no purpose as it permits
evidence to be led on all the grounds aforesaid under Section 64 and does not
cull out the controversy on account of which the revocation of the patent is
sought. If revocation is sought on the ground of the invention patented being
obvious, the issue should crystallise, whether it is obvious for the reasons
pleaded. Once the issues are so framed, it would automatically exclude
evidence on the grounds not pleaded or on which no issue has been sought.
33. I find this Court to have framed Rules under Section 110 of the Trade
and Merchandise Marks Act, 1958 and the Copyright Rules, 1959 in exercise
of powers under Section 73 of the Copyright Act, 1957. Though Section 158
of the Patents Act also empowers this Court to make rules as to the conduct
CS(COMM) Nos.29/2016 & 946/2016 Page 12 of 17
and procedure in respect of all proceedings before this Court under the Act
but unfortunately no rules are found to have been drafted. Perhaps now that
the issues such as the present have arisen, time has arrived for this Court to
undertake an exercise of framing of rules and which may provide for the
particulars to be contained in the pleadings in the proceedings under the Act.
A copy of this judgment be forwarded to Hon‟ble the Chief Justice to, if so
deems appropriate, refer the matter to the Rules Committee of this Court
(constituted in exercise of powers under Section 123 of the CPC) for
undertaking the said exercise.
34. Natco and Hoffmann have also understood the law to be such and
have in their counter-claim and written statement thereto pleaded in detail on
the said aspect. However Hoffmann, in the written statement to the counter-
claim of Natco, while listing various reasons for the invention patented by it
to be not obvious and why it entails an inventive step, has not given the
reason of „polarity‟ and „toxicity‟. As per the arguments made by counsel for
Hoffmann today, Hoffmann itself, at the time of filing the written statement
to the counter-claim, was not aware that the invention patented by it is not
obvious for the reason of „polarity‟ and „toxicity‟ and has learnt so now on
engaging and obtaining the opinion of the exert Dr. Bridges.
35. The Court thus for adjudicating whether the invention got registered as
a patent by Hoffmann is liable to be revoked or not, would be required to
inter alia adjudicate whether it is „obvious‟ or does not involve any
„inventive step‟ having regard to what was publicly known or published
before that. The said adjudication, needless to state, requires this Court to
form an opinion upon a point of science. I may in this regard notice that at
CS(COMM) Nos.29/2016 & 946/2016 Page 13 of 17
the time of registration of patent also the Controller General of Patents is
required to make a similar inquiry as this Court is required to make and for
this purpose vide Section 12 of the Patents Act requires the application to be
referred to an examiner for making a report. Only if the Court forms such an
opinion, can it issue an order revoking a patent. Hence the opinion of an
expert skilled in science becomes a relevant fact and of which evidence can
be adduced.
36. Seen in this light, the opinion of the expert is only a proof of the
pleading and no different. Just like only those facts which are pleaded can be
proved in evidence, similarly expert opinion can be given only of a scientific
fact pleaded. Without the scientific fact having been pleaded and if
controverted, having issue framed thereon, no evidence thereof in the form
of expert opinion in proof thereof can be adduced.
37. The affidavit by way of examination-in-chief of Dr. Bridges is indeed
his expert opinion in writing and a „document‟ and not a deposition and
should have been filed at the stage of filing documents.
38. The Courts, till now are more attuned to examination of handwriting
experts and whose reports form a part of the Court record as document and
who, in their examination-in-chief, merely prove the said report. But here,
Dr. Bridges, instead of giving his expert opinion in writing in the form of a
report, has incorporated the same in his affidavit by way of examination-in-
chief and which has resulted in the report, though a document, coming on the
record of the Court without any permission therefor having been taken.
Since the said opinion gives additional grounds for Hoffmann to defend the
claim of Natco for revocation and which it transpires from aforesaid,
CS(COMM) Nos.29/2016 & 946/2016 Page 14 of 17
Hoffmann also did not know at the stage of pleadings and documents, the
objection of Natco cannot be said to be misplaced. Opinion of an expert in
matters such as patent of pharmaceutical substance cannot be said to be at
par with the opinion of a handwriting expert. While denial alone of the
writing to be of the person of whom it is claimed to be is sufficient without
requiring pleading of differences and the opinion of the expert is only in
support of the denial or affirmation of the writing, the opinion of an expert in
patent matters stands on a different footing, where the Court is called upon to
rule on technical matters of whether the patent is indeed an invention. The
Legislature also in Section 64 has crystallised the grounds on which
revocation can be sought and the ingredients of the existence of the said
grounds necessarily have to be pleaded and which ingredients would thus
constitute a matter of opinion.
39. The counsel for Hoffmann also informed that getting opinions of
eminent experts in such fields is not an easy task and entails delays and it is
not always possible to procure such expert opinion in the form of reports at
the stage of filing documents.
40. The said difficulties even if encountered cannot however change the
procedure. As long as the deposition of the expert, even if without a report
having been filed earlier, is within the confines of the pleadings, no difficulty
will arise. However, if the expert transgresses the pleadings, certainly the
opposite party would be entitled to object that part of the deposition of the
expert.
41. The objection taken by Natco in IAs No.10698/2016 & 10685/2016
supra is thus found to be tenable and the portions of deposition of Dr.
CS(COMM) Nos.29/2016 & 946/2016 Page 15 of 17
Bridges which are beyond the pleadings of Hoffmann would be liable to be
struck down.
42. However the fact remains that the present controversy is a result of
there being no clarity on procedure, partly owing to absence of Rules and
owing to the erroneous framing of issues without crystallising the real
controversy and owing to Dr. Bridges deposing as a witness on the validity
of the patent on behalf of Hoffmann even before Natco, on whom the onus of
the issue qua validity rests, leading its evidence. The counsels inform that
not only are there no rules framed but there does not appear to be any
judgment till now on the said aspect. For this reason, I am inclined to not
deprive Hoffmann of an opportunity to defend the patent in its favour on the
grounds urged for the first time in the deposition of Dr. Bridges.
43. It is also well nigh possible that if Natco had led its evidence first,
Hoffmann, with the report / deposition of Dr. Bridges in its hand, may have
cross-examined the witnesses of Natco on the aspect of „polarity‟ and
„toxicity‟. The scope of cross-examination is certainly much larger. (See
Section 138 of the Evidence Act) If the witnesses of Natco had deposed on
the aspects of „polarity‟ and „toxicity‟, then Hoffmann would have been
entitled to counter with the opinion of Dr. Bridges. Hoffmann cannot be
placed in a disadvantageous position owing to the error in the procedure
which has occurred.
44. Rather, from the hearing it also transpires that the real issue in these
proceedings is the claim of Natco for revocation of the patent and if Natco
fails, therein it would axiomatically be liable for infringement. There was
thus no reason for Hoffmann, though plaintiff in both the suits, to commence
CS(COMM) Nos.29/2016 & 946/2016 Page 16 of 17
leading its evidence first.
45. For all the aforesaid reasons, IAs No.10698/2016 & 10685/2016 as
well as OA No.13/2017 & OA No.14/2017 are dismissed.
CS(COMM) No.29/2016 & CS(COMM) No.946/2016
46. The senior counsel for Natco, without prejudice to Natco‟s right to
impugn the order aforesaid, states that instructions will be required to be
obtained to cross-examine Dr. Bridges on the aspect of „polarity‟ and
„toxicity‟ and it will not be possible to cross-examine Dr. Bridges as
scheduled for today or even after the counsel for Dr. Reddy has concluded
the cross-examination of Dr. Bridges.
47. This request of Natco is found to be reasonable and is allowed.
48. The counsel for Natco shall, on or before 15th March, 2017, inform the
counsel for Hoffmann whether Natco requires to cross-examine Dr. Bridges
further and if it is so, Hoffmann shall at its own cost produce Dr. Bridges for
further cross-examination by Natco.
49. To be listed after the recording of evidence is completed.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 02, 2017 „gsr/bs‟ (corrected & released on 21st February, 2017) CS(COMM) Nos.29/2016 & 946/2016 Page 17 of 17