Cipla restrained to make generic COPD drug: DHC

The Delhi High Court restrained domestic pharma company Cipla from producing and marketing a generic version of Novartis drug ‘Onbrez’ used for treating Chronic Obstructive Pulmonary Disease.

Novartis sued Cipla for infringement of its Indian patents for drug ‘Onbrez’ containing Indacaterol as the active moiety. Cipla launched the generic version last year and petitioned the government to revoke Novartis patents, primarily on the ground of public interest.

Granting the temporary injunction, the Court observed that if there is a strong prima facie case and the validity is not further seriously questioned, then there is a clear way out to grant injunction.

“The main question in the present case before Court is whether the Court will allow a party to infringe the registered patent which is prima facie held to be valid, the infringement is established and there is no credible defense raised by the other side. The answer of this question is “NO”. Under these circumstances, the Court would never encourage the infringement in view of the exclusive and statutory rights granted under section 48 of the Act. The effect of registered patent is defined in the statute and the same is not capable of being misunderstood. The statutory and monopoly rights cannot be reduced to a nullity as by virtue of section 48 of the Act”, the Court reasoned.

The Court further added that “till the term of validity of the suit patents, the plaintiff is entitled to prevent any third party who does not have its permission from the act of making, using, offering for sale, selling or importing for those purposes an infringing product in India. In the present case, the compulsory license has not been granted by the authority to the defendant. Even its application for the same is not pending. Merely the grounds and conditions stipulated under section 83 and 84 of the Act do not absolve the defendant to infringe the registered patent.”

The court said the restraint on Cipla will remain till its application for compulsory license is decided by the relevant authority.

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