Delhi High Court - Orders
Pfizer Inc. & Ors vs Everest Pharmaceuticals Ltd. & Ors on 4 May, 2020
Author: Jayant Nath
Bench: Jayant Nath
$~A-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 118/2020 & IA. Nos.3764-3766/2020
PFIZER INC. & ORS. ..... Plaintiffs
Through: Mr.Mr.Pravin Anand, Ms.Tusha
Malhotra and Ms.Rashi Punia,
Advs.
versus
EVEREST PHARMACEUTICALS LTD. & ORS.....Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
ORDER
% 04.05.2020
IA No.3766/2020(exemption)
Allowed subject to all just exceptions.
IA No.3764/2020
1. This application is filed under Order 39 Rules 1 and 2 CPC seeking an ex-parte injunction to restrain the defendants, their directors, employees, etc. from using, making, selling, distributing, etc. in any other manner, directly or indirectly, dealing in any product including TOFAXEN that infringes the subject matter of Indian Patent Nos. 241773 and 218212.
2. The accompanying suit is filed by the plaintiffs seeking a decree of permanent injunction to restrain infringement of Indian Patent Nos.241773 and 218212, rendition of accounts, damages, delivery up, etc.
3. The case of the plaintiffs is that Patent No. 241773 is valid upto 23.11.2020 and Patent No. 218212 is valid upto 25.11.2022. It is claimed in the accompanying plaint that by virtue of grant of the said Patents, the plaintiffs have the exclusive right to prevent any third party from making using, offering for sale, selling or importing the subject matter of the suit Patents till validity of the Patents. It is stated that the plaintiffs have filed working statements on Form -27 before the India Patent Office as required by Section 146 of the Patents Act. It is stated that Tofacitinib is an active pharmaceutical ingredient of the product commercially sold under the name XELJANZ(R), which was launched in India in 2016. It is stated that this is a blockbuster drug due to the fact that it is an oral treatment in contrast with the existing treatments currently available which are injectibles and are extremely painful. The drug is used for treatment of adults with moderate to severe active rheumatoid arthritis. The plaintiffs have also given details of previous proceedings in respect of the suit Patents. It has been pointed out of that three of the suits have been decreed and in the balance injunction have been granted in favour of the plaintiffs.
4. Regarding the defendants, it is claimed that defendant No.1 is a pharmaceutical company in Bangladesh and as per information available, it is stated that defendant No.1 is the common manufacturer and marketer of generic versions of the drugs covered by the suit patents which are being advertised, offered for sale, and sold by defendants No.2 to 5.
5. Recently in the third week of January, 2020, the plaintiffs were shocked to come across a listing of generic Tofacitinib under the brand "TOFAXEN" which was advertised by defendant No.5. The plaintiffs further state that defendant No.1 has not been authorised by the plaintiffs for exporting, selling, supplying and distributing the impugned generic product "TOFAXEN" in India or within the territorial jurisdiction of this court. The defendants are illegally carrying out the export and import of the impugned generic TOFAXEN product into India, and further supplying and distributing the same within the country. Defendant No.2, it is pleaded, has also confirmed that it has a dealership arrangement with defendant No.1 to supply its products in India. It is pleaded that unless appropriate interim orders are passed by this court, the impugned generic TOFAXEN product may be made available in bulk both online and through wholesale drug distributor. Hence, the present suit.
6. In view of the above submissions, in my opinion, it is prima facie clear that an infringement of the suit patents of the plaintiffs, namely, Patent Nos.241773 and 218212 is taking place.
7. The plaintiffs have made out a prima facie case. The balance of convenience is in favour of the plaintiffs. Accordingly, an ex-parte injunction is passed in favour of the plaintiffs and against the defendants, their directors, employees, etc. restraining them from using, making, selling, distributing, advertising, exporting, importing and offering for sale, or in any other manner, directly or indirectly, dealing in any product including TOFAXEN that infringes the subject matter of Indian Patent Nos. 241773 and 218212.
8. The plaintiffs will comply with the provisions of Order 39 CPC within one week from today.
9. A copy of this order be sent to the learned counsel for the plaintiffs by the learned court master through email.
10. Issue notice to the defendants, returnable for 20.07.2020. CS(COMM) 118/2020
11. Issue summons to the defendants, returnable for 20.07.2020.
JAYANT NATH, J.
MAY 04, 2020/v