Himachal Pradesh High Court
Unknown vs Boehringer Ingelheim International ... on 6 December, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
Boehringer Ingelheim International GmbH & Anr. v. Femilab Healthcare & Anr.
COMS No.24 of 2024 06.12.2024 Present: Mr. Ashok Aggarwal, Senior Advocate, with Dr. Sanjay Kumar, M/s Arpita Sawhney, Atul Jhingan, Priyansh Sharma and Ankit Thakur, Advocates, for the plaintiffs. COMS No.24 of 2024 Issue notice to the defendants, returnable for 08.01.2025, on steps already taken.
OMP No.1085 of 2024 Notice in above terms.
By way of this application, the applicants have, inter alia, prayed for the following reliefs:-
"Restrain the Respondents by
themselves, their directors, licensees,
stockists and distributors, agents, sister concerns, subsidiaries and/or anyone claiming through any of them, jointly and severally from infringing the patent rights of Applicant No. 1 under Indian Patent No. 268846 by launching, advertising, making, using, offering for sale, selling, importing, exporting and/or stockpiling the medicinal product, Empagliflozin in any form whatsoever including Empagliflozin API, Empagliflozin formulation, "Empagliflozin Tablets", "Empagliflozin + Metformin Hydrochloride Tablets" and/or "Empagliflozin + Linagliptin Tablets" or any "generic version"
thereof or in any combination with Empagliflozin or any product sold under the trade mark(s)/name(s) "Empafine M Forte", "Empafine L 5/25", "Empafine 25 Tablets", "Empafine 10 Tablets" and "Empafine - L 5/10" or any other trade mark/name, whatsoever, or any other product covered by the subject patent granted by the Controller of Patents on September 18, 2015 in favour of Applicant No. 1.
Restrain the Respondents by themselves, their directors, licensees,
stockists and distributors, agents, sister concerns, subsidiaries and/or anyone claiming through any of them, jointly and severally from launching, using, offering for sale, selling, importing, exporting and/or dealing with it in any manner, whatsoever, after the expiry of the subject patent, the medicinal product, Empagliflozin in any form whatsoever including Empagliflozin API, Empagliflozin formulation, "Empagliflozin Tablets", "Empagliflozin + Metformin Hydrochloride Tablets" and/or "Empagliflozin + Linagliptin Tablets" or any "generic version"
thereof or in any combination with Empagliflozin or any product sold under the trade mark(s)/name(s) "Empafine M Forte", "Empafine "Empafine L 5/25", 25 Tablets", "Empafine 10 Tablets" and "Empafine L 5/10"
or any other trade mark/name, whatsoever, or any other product covered by the subject patent granted by the Controller of Patents on September 18, 2015 in favour of applicant No.1 manufactured during the term of the subject matter.
Restrain the Respondents by themselves, their directors, licensees,
stockists and distributors, agents, sister concerns, subsidiaries and/or anyone claiming through any of them, jointly and severally from launching the medicinal product, Empagliflozin in any form whatsoever including Empagliflozin API, Empagliflozin formulation, "Empagliflozin Tablets", "Empagliflozin + Metformin Hydrochloride Tablets" and/or "Empagliflozin + Linagliptin Tablets" or any "generic version"
thereof or in any combination with Empagliflozin or any product sold under the trade mark(s)/name(s) "Empafine M Forte", "Empafine L 5/25", "Empafine 25 Tablets", "Empafine 10 Tablets" and "Empafine L 5/10"
or any other trade mark/name, whatsoever, or any other product covered by the subject patent granted by the Controller of Patents on September 18, 2015 in favour of Applicant No. 1 for a period of six month after the expiry of the subject Patent."
Learned Senior Counsel for the applicants has submitted that the Subject Patent has been duly granted in favour of applicant No.1 on 18.09.2015 and as the international filing date thereof was 11.03.2005, the date of expiry of the Patent is 11.03.2025. Learned Senior Counsel has further submitted that recently it has come to the notice of the applicants that the non-applicants were infringing the Patent of the applicants by manufacturing and selling the infringing products, details whereof are given in the application. Despite the fact that the respondents do not have any Patent for manufacturing the product in issue, yet by imitating and infringing the Patent of the applicants, the respondents are selling their product in the market to the deterrent of the interest of the applicants. Learned Senior Counsel submits that as the expiry date of the Patent of the applicants is 11.03.2025 in these circumstance, in case, ad-interim injunction is not granted in favour of the applicants, then, the applicants will suffer from irreparable loss in the light of the fact that the respondents would be able to sell their product in the market by infringing the Patent of the applicants without having any legal right to do so. Learned Senior Counsel further submits that in these peculiar circumstances, in case, the prayer for ad-interim injunction is not granted, the applicants will suffer from irreparable loss and the very purpose of filing the suit would be frustrated. Learned Senior Counsel also submits that in the light of the fact that the applicants have a Patent registered in their favour, whereas, the non-applicants do not have so and further, as there is no challenge as upto date to the Patent of the applicants, therefore, prima facie also, there is a case in favour of the applicants and balance of convenience is also in their favour.
Having heard learned Senior Counsel for the applicants and having perused the averments made in the application, as this Court finds that a prima facie case has been made out by the applicants for the grant of ad-interim order, therefore, it is ordered that till the next date of hearing, the respondents are restrained either themselves or through their directors, licensees, stockiest and distributors, retailers, agents, servants and/or anyone claiming through any of them, jointly and severally, from infringing the patent rights of plaintiffs/applicants under Indian Patent No. 268846 by launching, advertising making, using, offering for sale, selling, importing and/or exporting the medicinal product Empagliflozin in any form whatsoever, including Empagliflozin API, Empagliflozin formulation "Empagliflozin Tablet"
"Empagliflozin + Metformin Hydrochloride Tablets" and/or Empagliflozin + Linagliptin Tablets or any "generic version"
thereof in any combination with Empagliflozin or any product sold under the trademark/names "Empafine M forte" "Empafine-L 5/25", "Empafine-25 Tablets" and "Empafine-L 5/10" or any other trademark/name whatsoever, or any other product covered by the subject patent granted by the Controller of Patents on 18.09.2015 in favour of plaintiff/applicant No.1. This order is subject to compliance of provisions of Order 39, Rule 3 of the Code of Civil Procedure.
OMP Nos. 1086 to 1089 of 2024 Notice in above terms.
(Ajay Mohan Goel) Judge December 06, 2024 (Vinod)