Delhi High Court
Astrazeneca Ab & Anr. vs Jigs Chemicals Limited on 3 March, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 3rd March, 2020
+ CS(COMM) 390/2019
ASTRAZENECA AB & ANR. ..... Plaintiff
Represented by: Ms. Vaishali Mittal, Mr. Pravin
Anand, Mr. Siddhant Chamola, Advs.
versus
JIGS CHEMICALS LIMITED ..... Defendant
Represented by: Mr. Priyank Adhyaru, Adv.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
I.A. 2960/2020 (u/O XIIIA CPC by P)
1. By the present application the plaintiffs seek a summary judgment in
terms of Order XIIIA Rule 3 Commercial Courts Act as also Chapter X Rule
3A & B of the Delhi High Court (Original Side) Rules.
2. Plaintiff No.1 is a company registered under the laws of Sweden and
are actively engaged in the discovery, development and commercialization
of prescription medicine. It offers medicine primarily for the treatment of
cardiovascular, metabolic, diabetes, respiratory and inflammation,
autoimmune, oncology, infectious and neuroscience disease worldwide. It is
operational in over 100 countries and its medicines are used by millions of
patients worldwide. Plaintiff No. 2 is the Indian subsidiary of Plaintiff No. 1
and is incorporated under the laws of India.
3. The subject matter of the present suit is the compound
TICAGARELOR which is proven to be an effective platelet aggregation
inhibitor. The IUPAC name assigned to TICAGRELOR (international non-
proprietary name) is (1S, 2S, 3R, 5S)-3-[7-[(1R,2S)-2-(3,4-
Difluorophenyl)cyclopropylamino]-5-(propylthio)-3H [1,2.3] triazolo [4,5-
d]pyrimidin-3-yl]-5-(2-hydroxyethoxy)cyclopentane-1,2-diolPlaintiffs are
the owners of Indian Patent Nos. IN 209907, IN 247984 and IN 272674
which cover the pharmaceutical compound TICAGRELOR. The empirical
formula of TICAGRELOR i.e. C23H28F2N6O4S and its molecular weight is
522.57 g/mol. having following structural formula:
4. Case of the plaintiff is they are the owners of Indian Patent Nos. IN
209907, IN 247984 and IN 272674 which covers the pharmaceutical
compound TICAGRELOR.
5. The patent application of Indian Patent No. 209907 (hereinafter IN
'907') was filed on 22nd May 2001 and was published under Section 11A of
the Indian Patent Act having 4th December 1998 as its priority date. Claim 1
of IN '907 discloses a class of compounds in the following formula:
TICAGRELOR falls within the scope of claim 1 of IN '907 wherein R is
OCH2CH2OH, R1 is propyl, R2 is phenyl group substituted by two fluorine
atoms, R3 and R4 are hydroxyl groups. Further, TICAGRELOR is
specifically claimed as the third compound in claim 5 of the said patent.
6. According to the plaintiff, the patent applications of Indian Patent No.
247984 (hereinafter IN '984) and Indian Patent No. 272674 (hereinafter IN
'674') were filed on 2nd January 2007 and 21st January 2009 respectively.
Priority date of IN '984 is 2nd June 2000 while of IN 674 is 21st August
2006. IN984 discloses four crystalline forms of TICAGRELOR while IN
'674 relates to pharmaceutical composition of TICAGRELOR. Further, IN
'984 and IN '674are a valid and subsisting patent and they have not been
subjected to any pre-grant or post-grant opposition under Section 25(1) and
Section 25(2) of the Patents Act respectively.
7. According to the plaintiff its product TICAGRELOR under the name
BRILINTA has since proven to be significantly more effective than the
existing medications such as clopidogrel in preventing further
cardiovascular events in ACS patients. Plaintiffs successfully started
manufacturing the product TICAGRELOR under the trade name BRILINTA
which is an oral anti-platelet treatment for Acute Coronary Syndrome
(ACS). The drug of the plaintiff is priced at very reasonable and affordable
price. The drug BRILINTA was initially sold at ₹50 per tablet and to further
increase the accessibility of the product to patients, in June 2015 plaintiffs
entered into an agreement with Sun Pharmaceuticals Industries Limited, an
Indian company to sell and market TICAGRELOR under a second brand
name i.e. AXCER. The plaintiffs have further reduced the price of drug
BRILINTA to ₹30 per tablet as its MRP to make it more accessible. It is the
claim of the plaintiffs that in the year 2017 alone plaintiffs have generated
revenue in excess of US$ 1 billion worldwide for BRILINTA and the sales
figure of the Indian market for the year 2017 alone have been in excess of
₹29 crores for BRILINTA and ₹14 crores for AXCER.
8. It is the grievance of the plaintiff that the defendant is engaged in
pharmaceutical industry in India and claims to be dealing in manufacture
and supply of APIs, industrial chemicals and solvents for manufacturing,
supplying, sourcing and marketing company. Plaintiffs in the month of April
2019 while conducting routine surveillance on the internet came across
defendant's website www.jigschemical.com which advertised the
commercialisation of TICAGRELOR.
9. Through further searches on the internet plaintiff learnt that the
defendants were also advertising their ability to commercially make sale of
TICAGRELOR on third party merchant platform such as www.cphi-
online.com. The email correspondence dated 9th April 2019 clearly reveals
that defendant offered to commercially sell API TICAGRELOR at the rate
of $6 USD per gram and the minimum quantity to be delivered shall be one
kg by the end of June.
10. Based on the admission of the defendant in the written statement,
learned Counsel for the plaintiff contends that the plaintiffs are entitled to
summary judgement in terms of Order XIIIA Rule 3 Commercial Courts Act
as also Chapter X Rule 3A & B of the Delhi High Court (Original Side)
Rules.
11. Defendant in Para 14 of his written statement has admitted the fact
that by virtue of Section 48 of the Patents Act, the plaintiffs have the
exclusive right to prevent others from making, using, selling, offering for
sale or importing TICAGRELOR as well as its crystalline form (as claimed
of IN984) and its finished formulation (as claimed of IN '674) or any other
product that falls within the scope of claims of IN '907, IN '984 and IN
'674. Based on the admission of the defendant in his written statement, the
plaintiff is entitled to a decree in terms of prayer (a) in para 41 of the plaint.
12. Application is disposed of passing a decree in favour of the plaintiffs
in terms of prayer (a) in Para 41 of the plaint.
CS(COMM) 390/2019
1. In terms of the order in application I.A. 2960/2020 u/O XIIIA CPC
suit is decreed in terms of prayer (a) in Para 41 of the plaint.
2. Learned counsel for the plaintiffs does not press the reliefs as per
prayers (b) and (c) of Para 41. Hence no decree is passed in terms of prayers
(b) and (c).
3. As regards cost, the plaintiff has filed an affidavit indicating that the
cost incurred by the plaintiff including Court fees, miscellaneous expenses
and the fees of the lawyers amounts to ₹25,51,198/-.
4. Suit is accordingly decreed in terms of prayer (a) Para 41 of the plaint
in favour of the plaintiffs and against the defendants. Cost of ₹25,51,198/-
is awarded in favour of the plaintiffs and against the defendants.
I.A. 10349/2019 (u/O XXXIX R 1&2 CPC by P)
Disposed of as infructuous.
(MUKTA GUPTA)
JUDGE
MARCH 03, 2020
'SK'
