Delhi High Court - Orders
Gsp Crop Science Pvt. Ltd vs Devender Kumar on 19 January, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 55/2024 & I.A. 1383/2024, I.A. 1384/2024
GSP CROP SCIENCE PVT. LTD. ..... Plaintiff
Through: Mr. G. Nataraj and Ms. Varsha
Jhavar, Advocates.
versus
DEVENDER KUMAR ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 19.01.2024 I.A. 1385/2024(seeking leave to file additional documents)
1. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
2. If Plaintiff wishes to file additional documents at a later stage, they shall do so strictly as per the provisions of the said Act.
3. Disposed of.
I.A. 1386/2024(seeking exemption)
4. Exemption is granted, subject to all just exceptions.
5. Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
6. Disposed of.
CS(COMM) 55/2024 Page 1 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:02 I.A. 1387/2024(seeking exemption from pre-institution mediation)
7. As the present suit contemplates urgent interim relief, in light of the judgment of Supreme Court in Yamini Manohar v. T.K.D. Krithi,1 exemption from attempting pre-institution mediation is granted.
8. Disposed of.
CS(COMM) 55/2024
9. Let the plaint be registered as a suit.
10. Upon filing of process fee, issue summons to Defendant by all permissible modes. Summons shall state that the written statement shall be filed by the Defendant within 30 days from the date of receipt of summons. Along with the written statement, the Defendant shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
11. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendant, be filed by the Plaintiff, without which the replication 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.
12. List before the Joint Registrar for marking of exhibits on 20th March, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
13. List before Court for framing of issues thereafter.
12023 SCC OnLine SC 1382.
CS(COMM) 55/2024 Page 2 of 8This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:02 I.A. 1382/2024(under Order XXXIX Rules 1 and 2 of CPC)
14. The present suit concerns infringement of Indian Patent No. 384184 for "LIQUID COMPOSITION OF PENDIMETHALIN AND METRIBUZIN" ["Suit Patent"]. Mr. G. Nataraj, counsel for Plaintiff, has presented the following facts and contentions:
14.1 Plaintiff/ GSP Crop Science Pvt. Ltd. is a company engaged in, inter alia, the manufacture and sale of agrochemicals. Plaintiff is a pioneer in the agrochemical industry and is a leader in crop protection research, being the owner of over 70 patents and patent applications in India alone. 14.2 Plaintiff was granted the Suit Patent on 13th December, 2021. Grant notification was published in the Official Journal dated 17th December, 2021. The twenty-year term of the Suit Patent is set to expire on 9th July, 2034. The bibliographic details of the Suit Patent are as follows:
PARTICULAR DESCRIPTION
Patent No. IN384184
Title Liquid Composition of Pendimethalin
and Metribuzin
Applicant GSP CROP SCIENCE PVT. LTD
Application No. 2243/MUM/2014
Application Type Ordinary Application
Filing Date 09.07.2014
Examination Request filed 21.02.2015
Publication date 15.01.2016
First Examination Report (FER) issued 27.05.2019
Reply to FER filed 23.11.2019
Date of Grant 13.12.2021
Post-Grant Journal Date 17.12.2021
Grantee/Patentee GSP CROP SCIENCE PVT. LTD
Expiry Date 09.07.2034
Corr. Foreign Applns None
Status In Force
14.3 The Suit Patent discloses and claims a liquid composition of Pendimethalin and Metribuzin. The claims of the Suit Patent relate to a CS(COMM) 55/2024 Page 3 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:03 liquid formulation comprising Pendimethalin in the range of 10 to 40% weight in weight (w/w) and Metribuzin in the range of 1 to 10% w/w. Suit Patent further relates to a liquid composition comprising of Pendimethalin and Metribuzin along with inactive excipients Octyl phenol ethoxylate, Ethoxylated of poly aryl phenol, Propylene Glycol in oil phase and Acrylic polymer of amine salt, Magnesium Aluminium salt, Silica, Silicon Anti- foam emulsion in aqueous phase wherein, Pendimethalin to Metribuzin is in the ratio from 1:1 to 25:1. In the said liquid composition, the particle size of Pendimethalin and Metribuzin is less than or equal to 5 micron. The formulation for the said composition is selected from Pendimethalin and Metribuzin, in any liquid form selected from suspo-emulsion (SE), emulsifiable concentrate (EC), zeon concentrate (ZC) and Oil dispersion (OD).
14.4 Purpose of the Suit Patent, which is a liquid formulation, is to provide a convenient combination dosage form of the active ingredients that have increased efficacy, stability and are bio-equatable to the corresponding free- combination of the same active ingredients. The technical problem addressed includes, inter alia, the development of fixed combination formulation of fixed ratio of certain active ingredients which is challenging as compared to the development of free combination formulations. 14.5 In line of the mandate of Section 83 of the Patents Act, 1970, Plaintiff has commercialised the product claimed via the Suit Patent since 2020 and continues to do so at an affordable cost to farmers. 14.6 Further, Plaintiff has also been granted registration for SE formulations of Pendimethalin 35% + Metribuzin 3.5% under Section 9(3) of the Insecticides Act, 1968, which is used in Plaintiff's product CS(COMM) 55/2024 Page 4 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:03 'Platform®'.
14.7 In November 2023, Plaintiff learnt through its field force that the Defendant had launched a product, bearing brand name 'Pendamic', which is an imitation of Plaintiff's novel and innovative combination of Pendimethalin 35% + Metribuzin 3.5% SE. Upon obtaining and examining samples of the Defendant's product, Plaintiff found that the label on these products, setting out the ingredients used therein, clearly matches the claims of the Suit Patent. Infringement analysis of Defendant's infringing product with the claims of the Suit Patent is as under:
Impugned Product (as per label) IN'184- Claim Scope overlap Pendimethalin 35% + Metribuzin 3.5% SE Claim 1:
A liquid composition comprising:
- Bioactive amount of Pendimethalin in the range of 10 to 40% w/w;
-Bioactive amount of Metribuzin in the range of 1 to 10% w/w wherein the ratio of Pendimethalin to Metribuzin is 1:1 to 25:1.
Claim 3:
The liquid composition as claimed in Claim 1- 2 wherein the formulation for the liquid composition is selected from suspo-emulsion (SE), emulsifiable concentrate (EC), zeon concentrate (ZC) and oil dispersion (OD).
The term "liquid" in Claim 1 includes a "Suspo-emulsion" i.e., SE. This is also evident from Claim 3 as highlighted in red above. 35% : 3.5% in the product = 10: 1 and is within the range of 1: 1 to 25:1. Claim 1 uses the term "comprising" thus indicating that the list of inert excipients is not exhaustive Active ingredients: Claim 1:
a) Pendimethalin a.i. 35.00% w/w, Pendimethalin in the range of 10 to 40% w/w;
b) Metribuzin a.i. 03.50% w/w, Metribuzin in the range of 1 to 10% w/w Inert excipients:
Dispersing Agent: Octyl phenol ethoxylate present in an amount
c) Ethoxylate of octyl phenol 10.00% w/w, of 5 to 15% w/w;
d)Tristyrylphenol ethoxylate 02.50% w/w, Ethoxylated poly aryl phenolpresent in an
e) Ethoxylated tristyryl phenol 1.8% w/w amount of 0.05 to 5 % w/w;
f) Naphalenesulfonic acid, sodium salt Claim 4: identifies the dispersing agent as CS(COMM) 55/2024 Page 5 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:03 condensed with formaldehyde 00.50% being selected from the group of ethoxylates of w/w, octyl phenol and poly aryl phenol and sodium naphthalene formaldehyde condensate} Anti-freezing agent: Propylene glycolpresent in an amount of0.001
g) Glycol 04.00% w/w, to 10% w/w Claim 5: identifies the anti-freezing agent as being selected from the group consisting of inter alia, ethylene glycol. "Glycol" is trade name for ethylene glycol.
Suspending agents:
h) Silica 00.50% w/w, Silica present in an amount of 0.001 to 5% w/w Claim 7: identifies the suspending agent as being selected from the group consisting of Anti-foaming agent: inter alia, fumed silica.
i) Polydimethyl siloxane 00.50% w/w.
Silicon anti-foam emulsion present in an amount of 0.001 to 2.5% w/w Solvent Claim 6: identifies the anti-foaming agent as
j) Water Q.S. % being selected from inter alia, silicon emulsion. Polydimethyl siloxane is a silicon Thickener: emulsion.
k) Xanthan gum De-mineralized water present in an amount of Anti-microbial agent: 15-30% w/w.
1) 1,2-benzisothiazol-3-one 0.20 % w/w Claim 1: "Auxiliary agent"
Claim 8: identifies thickener as being selected Binder: from inter alia, xanthan gum
m) Trisiloxane ethoxylate 0.50%w/w
n) Copolymer butanol EO/PO 0.50 w/w Claim 1: "Auxiliary agent"
Description, page 16, line 20 identifies anti-
microbial as benzisothiazolilones Wetting agent: Claim 1 : auxiliary agent
o) Polyarylphenyl ether sulphate, ammonium Description on page 17, line 10 includes salt 01.20% w/w, total 100% w/w. trisilicone ethoxylate and non-ionic block copolymers in list of binders. Copolymer of butanol ethoxylate/propyoxalate are known are binders Claim 1: auxiliary agent Description on page 18, line 4-8 includes alkyl ether sulfate in list of wetting agents.
14.8 Infringement is also established by the fact that Defendant has CS(COMM) 55/2024 Page 6 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:03 obtained a registration under Section 9(4) of the Insecticides Act, 1968. Such a registration is known as a "me-too" registration, as it is only granted when there already exists a First Registration under Section 9(3) of the said Act. This is effectively an admission of the fact that the Defendant was aware of the Suit Patent and that Defendant's product comprises of formulation which is identical to the Suit Patent. Moreover, Defendant cannot deny being aware of the Suit Patent as Plaintiff's product clearly carries a 'Patented' notice on the label, alerting any viewer to the fact that Plaintiff's product 'Platform®' is patented.
14.9 Additionally, at the time of obtaining samples of the Defendant's products available in the market, Plaintiff found that they are not sold on proper invoices. This indicates that the said product is spurious and an imitation.
14.10 Defendant's product sold under the brand name 'Pendamic' is a counterfeit, and if sale of the same is not injuncted it will have a detrimental effect on critical crops and livelihood of farmers. Thus, in the above circumstances, Plaintiff has filed the instant application seeking interim protections.
15. The Court has considered the aforenoted contentions and also analysed the infringement analysis extracted above. Plaintiff has established a strong prima facie case to demonstrate infringement of the Suit Patent. The product of Defendant is stated to have been launched only in the year 2023, as evident from the packaging on the Defendant's product. Therefore, balance of convenience also lies in favour of Plaintiff. Finally, it is noted that in case Defendant is not restrained, sale of the allegedly infringing products is likely to cause harm and damage to Plaintiff. In light of the CS(COMM) 55/2024 Page 7 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:03 above, the Court finds it appropriate to grant an ex-parte ad interim injunction in favour of the Plaintiff.
16. Accordingly, till the next date of hearing, Defendant, or anybody acting on their behalf, is restrained from dealing in any product that infringes the claims in Suit Patent No. 384184, or any of the claims thereof, and in particular including any suspo-emulsion formulation of Pendimethalin and Metribuzin wherein Pendimethalin is in the range of 10- 40% w/w and Metribuzin is in the range of 1-10% w/w.
17. Compliance of Order XXXIX Rule 3 of CPC be done with one week from today.
18. Re-notify on 28th May, 2024.
SANJEEV NARULA, J JANUARY 19, 2024 d.negi CS(COMM) 55/2024 Page 8 of 8 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 01:36:03