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It is denied that the quantities imported of the patented drug is negligible and almost 99.9 percent of the patient population does not have access to the drug. Though the Defendant has produced some articles in terms of COPD treatment requirement in India, they require verification and there is no disclosure if they all are INDACATEROL patients. There are several categories of COPD patients as admitted by the Defendant requiring different line of treatment, dosage and drug. Indacaterol is only a treatment for mild and moderate COPD condition patients and not for all categories of COPD patients as alleged. The defendant has deliberately made misleading allegations. In fact, it is also admitted that the Defendant itself is manufacturing and selling COPD drugs and it is beyond comprehension as to why the Defendant has not been able to fulfill the requirement of COPD patients in India.

ix) The Plaintiffs submit that they are not aware that INDACATEROL is a medication for 1.5 crore patients suffering from COPD as alleged and the Defendant. The total number of patients in India who suffer from COPD has not been accurately assessed.

x) The Defendant might be selling cheaper drugs for COPD but the Plaintiffs drugs are bought for their quality and efficacy. There is no other reason as to why the Defendant is unable to fulfill the requirement of treatment of COPD patients in India. It was denied by the plaintiffs that the import of the Plaintiffs' patent drug is miniscule compared to the actual requirement. It is alleged that there is no data provided by the Defendant as to what is the requirement of INDACATEROL to treat COPD patients considering that there are different treatments for different categories of patients of COPD. It was added that in any event the requirement of the drug of COPD patients falling in the category which may require the Plaintiffs' drug in question is being met as per the current demand.

65. It is submitted by the plaintiffs that there are four categories of COPD conditions: 

               (a)    Mild COPD condition;
               (b)    Moderate COPD condition;
               (c)    Severe COPD condition;
               (d)    Very severe COPD condition.

It is also the case of the plaintiffs that INDACATEROL as a monotherapy is only a treatment for "mild and moderate"

categories of COPD patients and that apart there are other drugs (including those marketed by the Defendants) for "mild and moderate" COPD categories. In fact, the condition of the patient is often wrongly diagnosed for Asthma instead of COPD. Often mild or moderate condition of COPD is not detected by physicians in time and there are various factors responsible for lack of timely and accurate assessment of mild and moderate COPD conditions. There is no data available as to what is the percentage or number of mild and moderate COPD patients. The alleged figures suggested by Defendant are therefore incapable of establishing the allegation of short supply raised by it. This is particularly the case as the Defendant's calculation assumes that INDACATEROL is the only drug to treat COPD and that INDACATEROL should meet all the demand for drugs to treat COPD.

66. There is a force in the submission of Mr.Subramanium that the plaintiffs are not expected to flood the market with INDACATEROL without reasonable demand. Medical practitioners have various options of drugs to choose from including that of the Defendant.

67. Before introduction of the INDACATEROL of the Plaintiffs, it is Defendant's drugs (among others) which were prescribed treatment for COPD patients. If the Defendant, despite being leading marketer of COPD drugs over last several decades, could not alter the number of COPD patients in need for treatment, the defendant cannot take the advantage of the Plaintiffs of not fulfilling the demand of COPD drug. As admitted by the defendant that COPD cannot be cured but only treated and therefore, the plaintiffs are correct in saying that the Defendant is merely relying on COPD data to raise the issue of public interest in order to infringe the suit patent.