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33. For the foregoing reasons, this issue is decided in favour of the plaintiffs and against the defendant.

34. These issues require common discussion, hence, are disposed of together. Ex. P-10 is a certified copy of extract of patent register which indicates that patent application no. 209816 (suit patent) was filed on 5 th July, 2002. It was granted on 6th September, 2007 in the name of Merck & Co. Inc. (USA). Name of the patentee was changed from Merck & Co. Inc. to Merck Sharp & Dohme Corporation vide entry dated 19 th January, 2011. There is an entry dated 24th January, 2013 to the effect that name of M/s Schering Corporation was entered in pursuance to an application received on 22nd January, 2013 in the patent office made by M/s Schering Corporation, 2000, Galloping Hill Road, Kenilworth, New Jersey by virtue of Agreement of Merger dated 1st May, 2012 executed between Merck Sharp & Dohme Corporation and M/s Schering Corporation. Entry dated 25th February, 2013 shows that name of the patentee was changed to Merck Sharp & Dohme Corporation in pursuance to the request dated 19th February, 2013 in the patent office. Entry dated 22nd May, 2013 further shows that M/s Sun Pharmaceutical Industries Ltd. was recorded as a licensee pursuant to the application made by M/s Sun Pharmaceutical Industries Ltd. based on the License Agreement dated 16th May, 2013 executed between Merck Sharp & Dohme Corporation and M/s Sun Pharmaceutical Industries Ltd. From the Ex. P-10 plaintiffs have succeeded in proving that Merck Sharp & Dohme Corporation (plaintiff no.1) is the patentee in respect of the suit patent. After 25th February, 2013 there has not been any subsequent change. As regards plaintiff no. 2 is concerned, it has been recorded as a licensee with effect from 22nd May, 2013.

36. Learned senior counsel for the defendant has further contended that PW1 K.G. Ananthkrishnan has deposed that suit patent was first filed in India by Merck & Co. Inc. on 6th January, 2004. Thereafter, name of Merck & Co. Inc. was changed to Merck Sharp & Dohme Corporation on 3rd November, 2009. Merck Sharp & Dohme Corporation became a wholly owned subsidiary of Schering Plough Corporation on 3rd November, 2009, by way of the reverse merger. Subsequently, Schering Plough Corporation changed its name to Merck & Co. Inc. on 3rd November, 2009. It is, thus, contended that as per plaintiff no.1 itself Merck & Co. Inc. ceased to have any right in patent from 3rd November, 2009 onwards. On 1st May, 2012 Schering Plough Corporation merged with Merck Sharp & Dohme Corporation (patentee) as a result of which all the assets of Merck Sharp & Dohme Corporation were transferred to Schering Corporation. Only copy of the merger certificate was filed before the patent office. Plaintiffs did not place on record any other document before the Court or the patent office to establish the actual transfer of rights from Merck Sharp & Dohme Corporation to Schering Corporation, which is not sufficient to establish transfer of rights in the suit patent. It is further contended that even no document was summoned from the patent office to show that Schering Corporation has changed its name to Merck Sharp & Dohme Corporation on 25th February, 2013. As per learned senior counsel, plaintiffs have failed to produce and prove on record necessary documents to establish the complete chain of documents to authenticate the transfer of patent from Merck & Co. Inc. to another so as to conclude, that plaintiff no. 1 became the proprietor of the suit patent. It is further contended that license agreements Ex. PW1/D-3 and Ex. CW2/A/D-1 are suspicious, inasmuch as, the license agreements have not been registered in accordance with law. A letter requesting to take the license agreement on record was filed before the patent office on 20th May, 2013 and pursuant thereof plaintiff no.2 appears to have been recorded as a licensee in the e-Register on 22nd May, 2013. The patent office raised objections vide letter dated 20th June, 2013 stating therein that address of the patentee Merck Sharp & Dohme Corporation in the license agreement was inconsistent with the e-Register as well as copy of the license agreement was not filed. Plaintiff no.2 replied to the said objections on 18 th June, 2013, that is, even prior to patent office raising the objections. The subsequent copy of license filed on record by the plaintiff no.2 also suffers from various defects. The patent license was signed on behalf of Merck Sharp & Dohme Corporation and Merck & Co. Inc. on 17th May, 2013; whereas by MSD International GMBH and Sun Pharmaceutical Industries Ltd. on 24th May, 2013 and 31st May, 2013 respectively, however, as per e-Register date of the license is 22nd May, 2013. License was executed between four parties, as opposed to two parties, as per the information detailed in the e-Register. No clarity on the ‗beneficial owner' viz Merck International GMBH has been substantiated with adequate documents. Two copies of license agreement bearing different dates of execution, that is, 16th May, 2013 and 31st May, 2013 were placed on the patent office record. The patent license is on a stamp paper of `100/-; whereas value of the assignment for the purpose of stamp has been set out therein as US$1. All this creates a serious doubt about the authenticity of license.

37. Learned counsel for the plaintiffs has contended that validity of the patent can be challenged in a counter claim before the High Court only on the grounds as envisaged under Section 64 of the Act and no other ground. None of the grounds as stipulated in Section 64 of the Act pertain to the tile of a patent. Any question with regard to title of a patent, pertains to rectification of the register of patents under Section 71 of the Act for which the exclusive jurisdiction vests with the Intellectual Property Appellate Board (IPAB). Jurisdiction of the High Court to deal with question of title under Section 71 is barred by virtue of Section 117D read with Section 117C of the Act. It is further contended that plaintiffs have explained the chain of title in its various pleadings and also in the evidence of PW1. Plaintiff no.1 had furnished documents to the satisfaction of the patent office and only thereafter its name was recorded as a proprietor of the suit patent. All the records of plaintiff no.1 as well as of patent office establish beyond doubt that plaintiff no.1 is the proprietor of the suit patent. PW5, in answer to question 75, has categorically stated that MSD International GMBH is a licensee of the suit patent which has been licensed to it by the proprietor of the suit patent, that is, Merck Sharp & Dohme Corporation (plaintiff no.1). It has been further contended that there exists a co-marketing and license agreement dated March 2, 2011 in favour of plaintiff no.2 (Ex. PW1/D2 Collectively). The said agreement grants the plaintiff no.2, vide clause 2.1, an exclusive license for the trade marks ISTAVEL and ISTAMET and a non-exclusive license to use the know-how for the term of the agreement. Clause 4.1 further stipulated that the know-how for the development of products, as defined by clause 1.16 referring to clause 1.10, shall be provided to plaintiff no.2. Clause 1.10 with Schedule B clearly states that products are pharmaceutical products formulated with active ingredients, namely, Sitagliptin and Sitagliptin & Metformin. The agreement dated 16th May, 2013 (Ex. PW-1/D-3) was only clarificatory . It is further contended that when the license was filed at the patent office on 20th May, 2013 an objection as to lack of notarization was raised by the patent office which was cleared by filing a notarized copy of the agreement (Ex. CW-2/A/D-1). On the evidence adduced, plaintiff no.2 was duly recorded as the licensee of plaintiff no.1 by the patent office, which is a conclusive proof in this regard.