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Boehringer Ingelheim Pharma Gmbh Co & ... vs Centurion Remedies Private Limited & ... on 26 August, 2022

Author: Navin Chawla

Bench: Navin Chawla

                    $~21
                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +    CS(COMM) 589/2022
                         BOEHRINGER INGELHEIM PHARMA GMBH CO & ANR.
                                                                       ..... Plaintiffs
                                       Through: Mr.Sandeep Sethi, Sr. Adv. with
                                                Dr.Sanjay Kumar, Ms.Arpita Swhney,
                                                Mr.Arun Kumar Jana, Ms.Meenal
                                                Khurana,      Mr.Harshit        Dixit,
                                                Mr.Priyansh Sharma & Mr.Chiranshu
                                                Arora, Advs.

                                                 versus

                             CENTURION REMEDIES PRIVATE LIMITED & ANR.
                                                                   ..... Defendants
                                         Through: None.

                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                            ORDER

% 26.08.2022 I.A. 13574/2022

1. The learned counsel for the plaintiffs submits that the balance Court Fee shall be deposited within a period of one week from today.

2. Accordingly, the period of deposit of Court Fee is enlarged by a period of one week.

3. The application is disposed of.

CS(COMM) 589/2022

4. Let the plaint be registered as a suit.

5. Issue summons to the defendants, to be served through all permitted modes, including electronically, returnable on 18th January, 2023.

6. The summons to the defendants shall indicate that the written Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44 statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of the summons. Along with the written statement(s), the defendants shall also file the affidavit(s) of admission/denial of documents of the plaintiffs, without which the written statement(s) shall not be taken on record.

7. Liberty is given to the plaintiffs to file the replication(s) within a period of 15 days from the date of receipt of the written statement. Along with the replication(s), if any, filed by the plaintiffs, the affidavit(s) of admission/denial of documents of the defendants be filed by the plaintiffs, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

8. Issue notice. Notice be served on the defendants through all permitted modes, including electronically, returnable on 18th January, 2023.

9. Reply(ies) be filed within a period of four weeks. Rejoinder(s), if any, be filed within a period of two weeks thereafter.

10. The plaintiff no. 1 claims itself to be the owner of Indian Patent No. 243301 (hereinafter referred to as 'the subject patent' or 'IN '301') granted on 05.10.2010 under Section 43 of the Patents Act, 1970 for pharmaceutical products entitled '8 - (3- AMINOPIPERIDIN-1-YL)-XANTHINE COMPOUNDS', as disclosed in its application, for a term of 20 years.

11. The plaintiffs claims that the medicinal products 'Linagliptin Tablet' and 'Linagliptin + Metformin Hydrochloride Tablets', covered by the subject patent, were introduced and launched in the Indian market under the brand name 'Trajenta/ Trajenta Duo' on 27.05.2012 and 21.01.2014, Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44 respectively.

12. The plaintiffs give the details of various litigations wherein the plaintiffs have been granted interim/final relief of protection of their rights in the said patent, including the order dated 10.05.2019 passed by a Co- ordinate Bench in CS (COMM) 239 of 2019 titled Boehringer Ingelheim Pharma GmbH & Co. Kg. v. Vee Excel Drugs and Pharmaceuticals Private Ltd. & Ors. and in CS(COMM) 240 of 2019 titled Boehringer Ingelheim Pharma GmbH & Co. KG & Anr. v. Vee Excel Drugs and Pharmaceuticals Private Ltd. & Ors.

13. The plaintiffs claim that from the information received from the Office of Food and Drugs Control Administration, Gandhinagar under the provisions of the Right to Information Act, 2005, and an Office Memorandum dated 06.04.2022 issued by the Ministry of Chemicals and Fertilizers, Department of Pharmaceuticals, Government of India, the plaintiffs apprehend that the defendants are manufacturing/importing a generic version of the medicine/good, the formulation of which infringes upon the subject patent.

14. The plaintiffs accordingly issued a cease and desist notice to the defendant no. 2 dated 01.11.2021, wherein the defendant no. 2 in their reply dated 16.12.2021 stated that they have no intention of launching, making, using, selling, offering to sell, exporting and/or importing any goods which would infringe upon the plaintiff's subject patent as also Indian Patent No. 227719. The plaintiffs, however, claim that on analysis, it is found that the defendants' product infringes the claims made by the plaintiff in the subject patent, details whereof are given by the plaintiffs in paragraphs 29 and 30 of the plaint.

15. Having heard the learned senior counsel for the plaintiffs, perused the contents of the plaint and documents filed therewith, I am of the opinion that the plaintiffs have been able to make out a good prima facie case in its favour. The balance of convenience is also in favour of the plaintiffs and against the defendants. The plaintiffs are likely to suffer a grave irreparable injury in case an ad-interim order of injunction is not granted in its favour.

16. Accordingly, the defendants are restrained from manufacturing 'Linagliptin' in any form whatsoever including 'Linagliptin API', 'Linagliptin' formulation, 'Linagliptin Tablet', 'Linagliptin amd Metformin tablets' and/or 'Linagliptin and Metformin Hydrochloride Tablets' or any generic version thereof or any product whatsoever covered by the subject patent, till the next date.

17. The defendants shall disclose the existing stocks and packaging which it has already manufactured. There shall be no restraint against the already- manufactured stock, provided an affidavit is filed disclosing the stock and value thereof to the Court within a period of one week of receipt of notice.

18. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of one week from today.

19. The learned senior counsel for the plaintiffs does press this application for the appointment of Local Commissioner(s) at this stage, reserving liberty to file the same afresh in case need so arises in future.

20. The application is accordingly disposed of as withdrawn, with liberty as prayed for.

21. Issue notice to the defendants to be served through all modes, Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44 including electronically, returnable on 18th January, 2023.

22. Reply(ies) be filed within a period of four weeks. Rejoinder(s) thereto, if any, be filed within a period of two weeks thereafter.

23. In view of the order passed hereinabove, this application is disposed of.

NAVIN CHAWLA, J AUGUST 26, 2022/rv Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:29.08.2022 18:09:44