Yesterday, Amshula had succinctly
captured the gist
of the Delhi
High Court’s order vacating the ex
parte order of interim injunction granted in favour of Sugen Inc against
NATCO with respect to Sugen’s patented drug Sutent (IN209251).
The issue before the Court was
whether the ex parte interim
injunction against NATCO must continue in light of the revocation
of Sugen’s patent on Sutent by the Controller again in February 2013. According
to the Plaintiff, Sugen Inc., the order of revocation had been appealed against
and although the IPAB had not stayed the order of revocation, the order was
kept in abeyance with respect to removal of the patent from the Register of
patents.
In other words, the limited
relief granted by the IPAB until disposal of the appeal was that the patent
would not be struck off from the Register of patents. According to the
Plaintiff, this warranted continuance of the ex parte interim injunction against NATCO.
The High Court took the view, and
rightly so, that had a stay been granted against the order of revocation, the
Court was entitled to consider continuing the ex parte injunction. However, since the order of revocation had not
been stayed, the revocation remained in force and consequently, for all
practical purposes, the erstwhile patent could not be enforced in the suit
proceedings until disposal of the IPAB appeal in favour of the Plaintiff.
Placing reliance on the Snehlata Gupte decision, the Court held
that recordal of the patent in the Register is a mere ministerial act, and true
significance lay in the grant or revocation of the patent, not the subsequent
act of giving effect to such grant/revocation by entering or removing the
recordal from the Register of patents. The Court also relied upon the
definition of “patent” under Section 2(1)(m) which defines a patent as one “granted”
under the Act, and not as one “entered” in the Register.
We will keep our readers posted on the proceedings in the appeal before the IPAB.
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