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(1) when the validity of the patent has already been established in a previous action, (2) when the patent is of old standing and the enjoyment under it has been uninterrupted (3) when the validity of the patent is not in issue and notwithstanding that the defendant offers to keep an account."

41. In the case of F. Hoffmann-La Roche Ltd vs Cipla Ltd., Mumbai Central decided on 24 April, 2009, Division Bench of Delhi High Court speaking through Hon'ble Justice S. Murlidhar has observed that the court has to see the tenability and the credible nature of defence while deciding the grant or non-grant of injunction. If the defendant's case is found to be tenable and there are serious questions as to validity to be tried in the suit, then the interim injunction in the case may not be granted.

73. It is not denied by the defendant that the defendant has applied and abandoned its applications in respect of several drug formulation involving INDACATEROL. The Defendant has not disclosed the same in its reply. The said facts were withheld from the Court. The Defendant has failed to disclose the details of rejected patents for compounds involving INDACTEROL. The justification given by the defendant on this aspect is for non-disclosure of fact is very strange.

74. The case law cited by the Defendant does not help the case of the defendant. All are cases in which the interim injunction was denied because the Plaintiff failed to establish a prima facie case of infringement or there was a credible challenge to the validity of the patent. Unless there is a credible challenge to the validity of the patent itself, the Courts will not include any alleged public interest as a factor to exercise discretion. It was observed in the judgment of Roche Vs. Cipla 2009 (40) PTC 125, cited by the Defendant, that the Plaintiff failed to establish prima facie case of infringement and on the contrary, defendant successfully raised credible challenge to the validity of the patent and the Courts have accepted the plea of the defendant in that case on the basis of defence raised. However, such circumstances are missing in the present case.

109. The Delhi High Court has approved the decision of E Bay [supra] while discerning the public interest at the time of deciding the interim injunction application in the case of F. Hoffmann-La Roche Ltd, ... vs Cipla Ltd. 148 (2008) DLT

598.

110. From the reading of the aforementioned illuminating observations of Division Bench of Delhi High Court in the case of Hoffmann-La Roche [supra] at the interim stage which remained undisturbed till date and even in the final judgment, the conclusion was the same though on different grounds, it is beyond cavil of any doubt that the Indian Courts have also approved the same sentiments that are emerging from US Courts that the public interest has vital role to play in the cases involving infringement of Patents in life saving drugs.