Cipla’s Appeal in Sunitinib Matter Dismissed by Division Bench of Del HC

In a 4-page order dated October 12, 2012, the Division Bench of the High Court has dismissed Cipla’s Letters Patent Appeal.

As stated in my last post, Cipla had preferred a Letters Patent appeal against the Learned Single Judge’s order dated October 8, 2012 restraining it from marketing its drug until October 15, 2012 (yesterday). The said order was passed in a writ petition filed by Sugen Inc against the post-grant opposition dated September 24, 2012 revoking Sugen’s patent on Sunitinib.

In its Letters Patent appeal, Cipla has raised precisely the question as I had in my last post. No interim stay order had been granted by the Learned Single Judge on the post-grant revocation of Sugen’s patent, and yet Cipla was restrained from marketing its drug. Apparently, although Sugen sought a stay, a stay was not granted, instead an injunction was granted against Cipla. 

Here is Para 4 of the order:

“4. This order is questioned on the ground that on the application for stay along with writ petition, the learned Single Judge had not  granted any interim order and only directed notice,  when second  application for stay with similar prayer was filed, the learned Single Judge entertained and granted the above order.  Further, in the absence of any prayer for direction to the appellant herein not to take any steps for marketing its drugs, the learned Single Judge should not have granted such an order. "

Despite noting the above, the Division Bench of the HC which was presided by the Hon’ble Chief Justice of the CH, held as follows:

“6. We have considered the above submissions.  On perusal of the order under appeal, it is seen that though the learned Single Judge has on 05.10.2012 only ordered notice in first stay application filed by the second and third respondents returnable by 15.10.2012, but having noticed that in the absence of stay, the appellant was intending to market the product before 15.10.2012, has on 08.10.2012, restrained the appellant from marketing the product, only till 15.10.2012.  This being a discretionary order considering the prima facie case, we are not inclined to interfere, particularly, when the learned Single Judge is seized of the stay applications that would be heard on 15.10.2012, which is the next working day after today. 

The points, whether the order of the Assistant Controller is bad in view of Section 25 (3) and (4) of the Patents Act and whether the writ is not maintainable in the face of availability of alternate remedy of appeal  are still to be considered by the learned Single Judge on the next date of hearing and for that reason, we are not inclined to go into that aspect.

7. For the disposal of this appeal, it is suffice for us to mention that the interim order is one of interim arrangement till the next working day after today and was passed on considering the prima facie case, particularly the subsequent event that had taken place after notice of the stay application had been issued. 

8. Hence, we do not find any merit to entertain this appeal.  This appeal is accordingly dismissed.”

An anonymous commentator commented on the last post informing that Cipla sought an adjournment before the Learned Single Judge yesterday in Sugen’s writ petition (which was the originally fixed date for hearing), and accordingly hearing in the petition has been adjourned to December 6, 2012.

Apparently, (which is subject to verification) the Court has ordered that the interim order restraining Cipla from marketing its drug shall continue until December 6, 2012.