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14. The said interim order in Sterlite Technologies Ltd. granting ad interim injunction was passed ex-parte. Interestingly in para 9 of the said order, the learned Single Judge observed that "at this stage, it is not possible to form an opinion, even prima facie." In the said order the learned Single Judge was of the view that there should invariably be an interim injunction granted in the first place in favour of a patent holder for the reasons set out in paras 16-17, which read as under:

"16. I say so because, a patentee, even after succeeding in the suit, in the absence of any interim order, is entitled only to profits earned by the defendant and which do not reflect the profits which the plaintiff would have earned if there had been no infringement. As aforesaid, the infringer is able to market at a much lower price, resulting in earning far less profits that which the patentee would have earned if there had been no infringement. The patentee would then also be entitled to punitive action against defendant for violation of the interim order.

(v) The impugned order overlooked the fact that the Defendant‟s product was already in the market. The falsity of the case of the Plaintiffs was evident from the fact that they had all the details of the Defendant‟s product including the trademark, photograph of the actual product, all of which was possible only if the Plaintiffs had the Defendant‟s product.

(vi) The impugned order was vague and was capable of leading to further litigation regarding non-compliance by the Defendant with the said interim injunction. In fact the Plaintiffs had already filed IA 9421 of 2019 against the Defendant under Order XXXIX Rule 2-A CPC alleging violation of the interim injunction and the said application was being heard today before the learned Single Judge.

34. Although, there are special features in litigation involving infringement of patents, that still would not obviate the Court dealing with the question of grant of interim injunction to record the three important elements as have been stressed in a large number of decisions of the Supreme Court. It is not necessary that the order granting or refusing interim injunction should FAO (OS) (COMM) 160/2019 Page 17 of expressly state about the above elements but a reading of the order should indicate the forming of an opinion by the Court on the said aspects. A reading of the impugned order does not reflect that the Court has formed such an opinion on the aforementioned elements.

35. Again, each case of alleged infringement of patent, particularly a pharmaceutical patent, would turn on its own facts. It is not possible to conceive an „across-the-board‟ blanket approach that would apply to all such cases, where as a matter of routine at the first hearing there would be a grant of injunction in favour of the Plaintiff. The decision in the application of interim injunction has to necessarily indicate the view of the Court on the three elements mentioned hereinbefore and the additional features when it involves a case of alleged infringement of a patent, and in particular, a pharmaceutical patent. It is not the length of the order or its precise wording that matters. It is necessary, however, that the factors mentioned hereinbefore must be discernible from the order which comes to a conclusion one way or the other regarding the grant of an interim injunction.