On February 5,
2015, a Division Bench of the Delhi High Court vacated
the interim injunction granted on January 19, 2015 by a Single Judge of the Court
against Glenmark Pharma in respect of Symed Labs’ process patents on Linezolid
IN213062 and IN213063.
The reason for
the ad interim vacation of the interim
injunction of the Single Judge, according to the Division Bench, was the
failure on the part of the Single Judge to take into account Glenmark’s
contention that Symed Labs had failed to establish that the products of the
parties were identical, which is a mandatory requirement under Section 104A of
the Patents Act, 1970. Extracted below are the relevant portions of the DB’s
order:
“According to Mr Chidambaram, a specific plea is taken
in the written statement and he has drawn our attention to certain paragraphs
thereof to show that the Linezolid API manufactured by the
appellants/defendants is different from that of the plaintiff/respondent.
Therefore, before the learned Single Judge could grant an injunction in favour
of the respondent/plaintiff, it was incumbent upon the learned Single Judge to,
prima facie, come to a conclusion that the Linezolid API manufactured by the
plaintiff using its patented processes was identical to the Linezolid API
manufactured by the defendants/appellants. This does not appear to have been
done. It is in these circumstances that we are vacating the interim order for
the time being and direct that the defendants/appellants shall maintain
accounts and shall file the same in this Court as also supply a copy to the
respondent/plaintiff”
Section 104A
envisages reversal of burden of proof on the defendant in limited circumstances
where the patentee is unable to establish that the defendant’s process is
identical to that of the former’s patented process, but has established the
limited fact that products of both parties are identical. In the facts of
Linezolid case, unless the patentee sought to place reliance on Section 104A to
seek reversal of burden of proof, I am not sure it is incumbent on it to establish
the identicality of the products. Since I haven’t had the chance to read the
Single Judge’s order of injunction, I shall reserve my comments on the issue.
That being said,
the vacation of the interim injunction by the DB is only ad interim since it is yet to dispose the appeal. The next date in
the appeal April 6, 2015.
