Delhi High Court
Dsm Sinochem Pharmaceuticals ... vs Sinopharm Weiqida ... on 24 January, 2019
$~OS-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24.01.2019
+ CS(COMM) 78/2017
DSM SINOCHEM PHARMACEUTICALS NETHERLANDS
B.V & ANR. ..... Plaintiffs
Through Mr.Chander M. Lall, Sr. Adv. with
Ms.Nancy Roy and Ms.Shreya Sethi, Advs.
versus
SINOPHARM WEIQIDA PHARMACEUTICAL
CO (WQD) & ANR. ..... Defendants
Through Mr.Jayant Mehta, Ms.Rajeshwari H
and Mr.Tahir A., Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
IA Nos. 13959/2018
1. This application is filed under Order 39 Rules 2A CPC seeking an
order holding defendant No. 1 guilty of contempt of court for wilfully
violating the order of this court dated 20.04.2017. Other reliefs are also
sought.
2. The present suit is filed for permanent injunction to restrain
infringement of the patent, rendition of accounts and damages. This court on
30.01.2017 in IA No. 1225/2017 filed under Order 39 Rules 1 and 2 CPC
noted that defendant No.1 is a Chinese entity which is stated to be infringing
the patent and exporting infringing goods to India and defendant No. 2 is
marketing the said goods in India. On 20.04.2017 this court directed that till
further orders, defendant No. 1 is restrained from exporting to India or
otherwise selling in India any pharmaceutical product, the active
pharmaceutical ingredient whereof contains "Amoxicillin Trihydrate'
produced by a process in infringement of Patent No. 247301 of plaintiff No.
1. It is further stated in this application that the pleadings have been
completed. However, defendant No. 1, it is pleaded, in para 10 of its
replication to the counter-claim has admitted of using a two steps process
consisting of first step of "enzymatic synthesis" and second step of
"crystallisation". It is pleaded that the patent of the plaintiff is a process patent
and the process revealed by the defendant in their replication to the
defendant's written statement in the counter claim is a direct copy of the
patent of the plaintiff. Hence, it is pleaded that admittedly, defendant No. 1 is
using the process as claimed in the suit patent for the manufacture
"Amoxycillin Trihydrate" and is thus openly flouting the orders of this court
by continuing to infringe the suit patent despite injunction order of this court
dated 20.04.2017.
3. I have heard learned counsel for the parties.
4. Learned senior counsel for the plaintiffs has today in court filed a chart
to show that the process revealed by the defendant in its replication is
identical to Claim 1 of the suit patent. Learned senior counsel for the plaintiff
also relies upon Section 104 A of the Patent Act to state that as the patent in
issue is a process patent, a direction can be issued to the defendant to prove
that the process used by him to obtain the product is different from the
patented process.
5. Learned counsel for the defendant has however pleaded that the
defendant is not following the patent of the plaintiff. It is pleaded that the
process that is being followed by the defendant for manufacture is a process
which is known to public and is a prior art. This prior art is available in one of
the expired patents and hence, there is no violation of the interim orders of
this court. He also relies upon the judgments of the Supreme Court in the case
of Union of India and Ors. vs. Subedar Devassy PV, (2006) 1 SCC 613 and
Noor Saba vs. Anoop Mishra & Anr., (2013) 10 SCC 248 to contend that to
hold anyone liable for contempt, the court has to arrive at a conclusion that
the respondent have wilfully disobeyed the order of the court. It is reiterated
that there is no wilful disobedience of the order of the court
6. I may first look at the chart filed by the learned senior counsel for the
plaintiffs which depicts the process patent of the plaintiff and process of
manufacture being followed by the defendant as stated in the replication. The
two processes read as follows:-
"Process revealed by Defendant in Claim 1 of the Suit Patent
the Replication to defendants'
written statement in Counter Claim
6 amino penicillanic acid (6APA) 6 amino penicillanic acid (or a
salt thereof)
+
+
Activated parahydroxy phenyl
glycine Activated parahydroxyphenyl
glycine
Conditions- In presence of an
enzymatic Synthesis
Enzyme immobilized on a
Immobilized enzyme carrier at pH of 5-9 at a
temperature of 0- 40℃
pH5-9 Temperature -
0- 40℃ (pg 72, 4th Forming an aqueous
Para) solution containing
Amoxicillin
Crude amoxicillin
Crystallizing amoxicillin
Conditions- Trihydrate from
crystallization
Water Hydrochloric aqueous solution at
acid
pH 2 to 7 pH of 2 to 7 and
(Temperature 5° to
40°) at a temperature of 5℃ to 40
℃
Crystalline amoxicillin
7. There is no serious dispute of the contents of the aforesaid chart. It is
clear that the process for manufacture being followed by the defendant is
virtually identical to the process patent of the plaintiff. This clearly shows that
the defendant is violating the patent of the plaintiff despite the interim order.
8. Even assuming, what is being pleaded is true, namely, that the process
patent is prior art and the defendant have copied this prior art based on a
patent which has expired then that would not absolve the defendant of having
violated the interim order passed by this court. The said contention may be a
valid contention to move the court for vacating of the interim order but cannot
be a defence or a ground for disobeying the order of this court.
9. In my opinion, the plaintiffs have made out a prima facie valid case of
breach of the interim order by the defendants.
10. As suggested by learned senior counsel for the plaintiff, I have taken a
lenient view of the matter. To obviate any such repeat violation, I restrain
defendant No. 1 from exporting to India the said product "Amoxycillin
Trihydrate". Defendant No. 2 is also restrained from importing such product
from defendant No. 1.
11. This application stands disposed of.
CS(COMM) 78/2017
List on 01.04.2019.
JAYANT NATH, J.
JANUARY 24, 2019/rb
