Breaking News: Interim Injunction against NATCO Vacated in the Sutent case

3 days ago, the Delhi High Court vacated the ex parte interim injunction granted in favour of Sugen Inc. against NATCO for the infringement of its patent in the drug Sutent. We have earlier blogged on the issue here, here, here, here and here.

The background of the case is interesting as CIPLA, which is not a party to the suit proceeding, had filed a post grant opposition to the patent leading to its revocation by the Assistant Controller of Patents and Designs in September 2012. 

The order of revocation was upheld in February 2013 even after the same was remanded by the Supreme Court for reconsideration. On appeal, the IPAB did not grant a stay of the order of revocation but directed the order for revocation to be kept in abeyance. The matter is scheduled to be heard by the IPAB on the 25^th of this month.

The plaintiffs argued before the Delhi High Court that the patent is still valid and enforceable against the defendants as the order of revocation is pending consideration before the IPAB. The plaintiffs also argued that the patent has not been struck off the Register and anyone inspecting the Register would treat the plaintiffs as the proprietor of the said patent.

The court rejected this argument stating that the mere pendency of an appeal does not amount to a stay of the operation of the order appealed against.

The court has also held that in the absence of an order by the IPAB granting a stay on the order of revocation, the mere entry on the Register does not by itself make the patent enforceable.  The court clarified that it is the ‘grant’ and the ‘revocation’ of a patent that confers rights upon a patentee and not the ‘entry’ in the register.

We thank a well-wisher of the blog for bringing this order to our attention!