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3. With respect to the pleadings in the plaint the learned Single Judge has noted that the patent relates to a pharmaceutical product Vildagliptin. It treats Type 2 Diabetes Mellitus. The learned Single Judge has noted that apart from the product Patent No.212815, the respondents have three pending patent applications before the Indian Patent Office relating to Vildagliptin formulations, Vildagliptin and Metformin hydrochloride formulations under the brands GALVUS and GALVUSMET. It has been noted that one application pertaining to Vildagliptin formulations and Vildagliptin and Metformin hydrochloride containing formulations has been rejected by the Indian Patent Office against which appeal is pending. The learned Single Judge has thereafter noted that the pharmaceutical product containing Vildagliptin formulation was launched by the plaintiffs globally in the year 2007 under a trade name 'GALVUS' and Vildagliptin with Metformin hydrochloride in the year 2008 under the trade name 'GALVUSMET' and 'EUCREAS'. The learned Single Judge has thereafter noted that the appellants are intending to launch in the market a pharmaceutical preparation which is an anti diabetic drug containing the formulation Vildagliptin. Thus, the action was a quia timet action.

4. The learned Singe Judge has noted various orders in favour of the plaintiffs passed by various Courts in different suits concerning pharmaceutical products having formulation or combination containing Vildagliptin. The learned Single Judge has noted that the pharmaceutical product which appellant intends to market contains formulation Vildagliptin. Law declared in the decision reported as 2013 (54) PTC 452 Merck Sharp and Dohme Cororation & Anr. vs. Glenmark Pharmaceuticals Ltd. has been noted by the learned Single Judge which holds that a patent formulation cannot be used in combination of other works unless it is shown that the product so obtained is materially different from the way patent product works. The learned Single Judge has noted that the patent granted vide Patent No.212815 in respect of the compound Vildagliptin on December 14, 2007 was effective from October 12, 1998. Therefrom the learned Single Judge has prima facie opined that the application for patent was in public domain and for last 16 years no objections whatsoever were filed by the appellants and only on August 11, 2014 the appellants filed a revocation petition. Therefrom, though not expressly stated, the learned Single Judge has prima facie concluded that the respondents would have a strong prima facie case pertaining to its formulations containing the compound Vildagliptin.

5. A projected defence that there is a concealment of a material fact which disentitles the respondents to the grant of an ad-interim injunction, in that the respondents have not disclosed abandonment of an application filed by them on June 13, 2007 disentitles the respondents to the grant of any injunction has been noted. The learned Single Judge has noted a related objection, being that the use of the compound Vildagliptin in a crystalline form cannot infringe the patent of the respondents. The application for grant of patent which was abandoned, as per the appellants pertained to Vildagliptin compound in a crystalline form.

8. Attacking the impugned order Sh.P.Chidambaram learned senior counsel for the appellant took us through the claim application filed by the respondent for grant of the patent on which cause of action is founded as also the application for grant of patent which was ultimately abandoned to urge that the application for grant of patent which was abandoned pertained to the formulation Vildagliptin in crystalline formulation and urged that the patent on which the suit is based relates to Vildagliptin in a polymorphous state. The grievance of the learned senior counsel was to the positive finding returned in paragraph 27 that it was not a case of concealment and that the law declared by the Division Bench of this Court in the decision reported as 2009 (40) PTC 125 F.Hoffmann - LA Roche Ltd. & Anr. Vs. Cipla Ltd. was not applicable. Learned counsel urged that the application which was ultimately abandoned would evince the claim of the respondent that Vildagliptin in crystalline formulation is an inventive step distinct from Vildagliptin polymorphous formulations and therefrom it was urged that as per the respondent itself Vildagliptin in crystalline formulation was distinct from Vildagliptin in a polymorphous state.