Delhi High Court
Eli Lilly And Company & Ors. vs Bryan Pharmaceuticals Through ... on 15 November, 2021
$~29(Original Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 439/2021 & I.A. 14819/2021
ELI LILLY AND COMPANY & ORS. ..... Plaintiffs
Through: Mr. Pravin Anand, Ms. Prachi
Agarwal & Ms.Ridhie Bajaj,
Advs.
versus
BRYAN PHARMACEUTICALS THROUGH: ITS
PROPRIETOR MR. LAXMI KAND PAL / NAVNEET KAND
PAL & ORS. ..... Defendants
Through: Ms. Rajeshwari H& Mr. Tahir
A J, Advs. for D11
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
O R D E R (ORAL)
% 15.11.2021
I.A. 14819/2021 (under Section 151 of the CPC, 1908)
1. The plaintiff is the owner of Indian Patent, IN 270765, in
respect of the compound, "Baricitinib", which is marketed in India,
under the brand name/trademark, Olumiant®, a trademark of which
Plaintiff No. 1 is the registered proprietor.
2. Plaintiffs 1 and 2 were granted, on 3rd May, 2021, 'Emergency
Use Approval' (EUA) for use of "Baricitinib" in its combination with
Remdesivir, for treatment of COVID-2019. Following such grant, the
plaintiff entered into eight royalty-free voluntary license agreements
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:16.11.2021
16:18:03
with various Indian pharmaceutical companies, permitting the
companies to distribute Baricitinib, under their individual trademark/
brand names, solely for the purpose of treatment of COVID-2019 and
for no other purpose.
3. The plaint complaints that Defendants 1 to 19, were marketing
and advertising for sale, "Barinat", the brand name under which
Defendant No. 21, i.e.M/s Natco Pharma Ltd., was manufacturing and
marketing "Baricitinib"as a treatment for rheumatoid arthritis. This, it
was contended, was a breach of the agreement between the plaintiff
and Defendant 21, which permitted use of "Barinat", only for
treatment of COVID-2019.
4. The present application has been moved by Defendant No. 11,
Bull Pharmachem. The applicant submits that the marketing/display of
"BARINAT", as a treatment for rheumatoid arthritis, by the applicant,
was an inadvertent error of the marketing team and that the applicant
had no intention of selling "Barinat", as a treatment for rheumatoid
arthritis or for which it was not produced.
5. Despite the advertisement, it is further stated in the application,
that Defendant No. 11 has not, in fact, sold "Barinat", as a treatment
for rheumatoid arthritis.
6. Ms. Rajeshwari, learned Counsel for Defendant 11/applicant,
undertakes on behalf of her client, that the applicant would not market
or sell "Barinat", as treatment for any ailment other than COVID-
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:16.11.2021
16:18:03
2019.She also undertakes that her client would not export "Barinat"
tablets.
7. In view thereof, Mr. Pravin Anand, learned Counsel for the
plaintiff, agrees that, qua Defendant No. 11, no cause of action
survives.
8. In view of the averments contained in the present application,
and the submissions of Ms. Rajeshwari, no cause of action survives
against Defendant No. 11. Defendant No. 11 shall be bound by the
averments in this application, as well as statement made by learned
Counsel at the Bar.
9. In view thereof, the present suit is disposed of qua Defendant
No. 11, who shall not continue to be treated as in the array of parties.
C.HARI SHANKAR, J
NOVEMBER 15, 2021
ss
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:16.11.2021
16:18:03
