Delhi High Court - Orders
Pfizer Inc & Ors vs Azista Industries Private Limited & Ors on 29 March, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:30.03.2022
23:01:33
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 190/2022 & I.As. 4792-93/2022, 4795/2022, 4834/2022
PFIZER INC & ORS. ..... Plaintiffs
Through: Mr. Pravin Anand, Ms. Tusha
Malhotra, Ms. Richa Bhargava,
Advocates. (M:9999954489)
versus
AZISTA INDUSTRIES PRIVATE LIMITED & ORS. .... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 29.03.2022
1. This hearing has been done through hybrid mode. I.A. 4834/2022(for exemption)
2. Allowed, subject to all just exceptions. I.A. 4834/2022 is disposed of. I.A. 4794/2022(for exemption)
3. This is an application seeking exemption from filing duly attested affidavits. Binding the deponent of the affidavits to the contents of the application, the exemption is granted. The physical copy of the attested affidavits be filed in the Registry within four weeks.
4. I.A. 4794/2022 is disposed of.
I.A. 4793/2022 (additional documents)
5. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015. The Plaintiffs, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015.
6. I.A. 4793/2022 is disposed of.
CS(COMM) 190/2022 Page 1 of 5 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33CS (COMM) 190/2022
7. Let the plaint be registered as a suit.
8. Issue summons to the Defendants through all modes upon filing of Process Fee.
9. The summons to the Defendants shall indicate that a written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.
10. Liberty is given to the Plaintiffs to file a replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiffs, 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.
11. List before the Joint Registrar for marking of exhibits on 13 th May, 2022. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
12. List before the Court on 29th July, 2022.
I.A.4792/2022 (u/O XXXIX Rules 1 & 2 CPC)
13. The Plaintiffs have filed the present suit seeking permanent injunction restraining infringement in respect of their registered patent no. 218291 (hereinafter "suit patent"), rendition of accounts, damages, delivery up etc. The suit patent was granted on 31st March, 2008 with priority date 22nd January, 2002. The INN assigned by the WHO to the compound claimed in the suit patent is 'Palbociclib'. The case of the Plaintiffs is that the Plaintiff CS(COMM) 190/2022 Page 2 of 5 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:33 No.2 - Warner Lambert Company LLC is the recorded owner of the suit patent and Plaintiff No.1 is the holding company of Plaintiff No.2. Plaintiff No. 3 is the marketing company of the Plaintiff Nos.1 & 2 in India. The product of the Plaintiff 'Palbociclib' is sold by the Plaintiff under the trade names 'Ibrance' and 'Palbace'.
14. Mr. Anand, ld. Counsel for the Plaintiffs, points out that in 2013 the US FDA designated Palbociclib (Ibrance) as a Breakthrough Therapy for the treatment of cancer. Further, the Institute of Cancer Research (ICR), London also described the drug as among the "most important breakthroughs" for women with advance cancer in the last two decades due to the positive effect it had on patients.
15. Mr. Anand, ld. Counsel further submits that there are several orders which have already been passed by this Court protecting the Plaintiffs patent rights in 'Palbociclib'.
16. According to the Plaintiffs, the exclusive rights to manufacture, sell, import, or market the product 'Palbociclib' vest in the Plaintiffs in view of claims 1 and 8 of the granted suit patent which has the molecular formula as under:
CS(COMM) 190/2022 Page 3 of 5 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:3317. The said drug is used for treating advanced (metastatic) breast cancer, and was innovated in the early 2000s. The term of the suit patent would come to an end in January, 2023. The patent is, thus, valid as on date. The case of the Plaintiffs is that one of its executives came across the Defendants promoting and selling 'Palbociclib' under the mark 'Palbib'. The said executive has filed an affidavit on record stating that he came across certain generic products of 'Palbociclib' under the brand name 'Palbib' being distributed in the market in Ahmedabad, Gujarat. Then further enquiries were made and the image of the impugned product was circulated. The product image which has been placed on record shows that the same is being manufacturers by one 'Azista Bhutan Healthcare Limited' from Bhutan. However, the main company is Defendant No.1- Azista Industries Pvt. Ltd. which has offices in Gujarat and Telangana. The products of the Defendants are being advertised on their own website as also on the www.pharmacompass.com.
18. A perusal of the record shows that there is no doubt that the Defendants are in fact manufacturing and selling 'Palbociclib' for which the Plaintiffs have a granted patent.
19. In the opinion of the Court, the Plaintiffs has made out a prima facie case for grant of ad-interim ex parte injunction. The balance of convenience in the present case lies in favour of the Plaintiffs, considering the fact that the patent is an old patent with a priority date of almost 19 years ago. The Defendants, or anyone acting on their behalf are, accordingly, restrained from manufacturing, marketing, selling, exporting, importing products containing 'Palbociclib' or in any other manner infringing 'IN 218291' till the next date of hearing.
CS(COMM) 190/2022 Page 4 of 5 Signature Not Verified Digitally Signed By:Devanshu Signing Date:30.03.2022 23:01:3320. If there are any existing stocks of the impugned product with the Defendants, they are permitted to approach this Court by way of an application.
21. Compliance of Order XXXIX Rule 3 CPC be effected within one week.
22. Reply to the application be filed within four weeks from the service of the present order along with the paper book.
23. List the application before the Court on 29th July, 2022.
24. The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.
PRATHIBA M. SINGH, J.
MARCH 29, 2022 dj/sk CS(COMM) 190/2022 Page 5 of 5