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DSM Sinochem Pharmaceuticals Netherlands B.V. & Another v/s Sinopharm Weiqida Pharmaceutical Co (WQD) & Another

    Civil Suit (Comm) No. 78 of 2017

    Decided On, 24 January 2019

    At, High Court of Delhi


    For the Appearing Parties: Chander M. Lall, Nancy Roy, Shreya Sethi, Jayant Mehta, H. Rajeshwari, A. Tahir, Advocates.

Judgment Text

Ia Nos. 13959/2018

1. This application is filed under Order 39 Rules 2A CPC seeking an order holding defendant No. 1 guilty of contempt of court for wilfully violating the order of this court dated 20.04.2017. Other reliefs are also sought.

2. The present suit is filed for permanent injunction to restrain infringement of the patent, rendition of accounts and damages. This court on 30.01.2017 in IA No. 1225/2017 filed under Order 39 Rules 1 and 2 CPC noted that defendant No.1 is a Chinese entity which is stated to be infringing the patent and exporting infringing goods to India and defendant No. 2 is marketing the said goods in India. On 20.04.2017 this court directed that till further orders, defendant No. 1 is restrained from exporting to India or otherwise selling in India any pharmaceutical product, the active pharmaceutical ingredient whereof contains "Amoxicillin Trihydrate" produced by a process in infringement of Patent No. 247301 of plaintiff No. 1. It is further stated in this application that the pleadings have been completed. However, defendant No. 1, it is pleaded, in para 10 of its replication to the counter-claim has admitted of using a two steps process consisting of first step of "enzymatic synthesis" and second step of "crystallisation". It is pleaded that the patent of the plaintiff is a process patent and the process revealed by the defendant in their replication to the defendant's written statement in the counter claim is a direct copy of the patent of the plaintiff. Hence, it is pleaded that admittedly, defendant No. 1 is using the process as claimed in the suit patent for the manufacture "Amoxycillin Trihydrate" and is thus openly flouting the orders of this court by continuing to infringe the suit patent despite injunction order of this court dated 20.04.2017.

3. I have heard learned counsel for the parties.

4. Learned senior counsel for the plaintiffs has today in court filed a chart to show that the process revealed by the defendant in its replication is identical to Claim 1 of the suit patent. Learned senior counsel for the plaintiff also relies upon Section 104 A of the Patent Act to state that as the patent in issue is a process patent, a direction can be issued to the defendant to prove that the process used by him to obtain the product is different from the patented process.

5. Learned counsel for the defendant has however pleaded that the defendant is not following the patent of the plaintiff. It is pleaded that the process that is being followed by the defendant for manufacture is a process which is known to public and is a prior art. This prior art is available in one of the expired patents and hence, there is no violation of the interim orders of this court. He also relies upon the judgments of the Supreme Court in the case of Union of India and Ors. vs. Subedar Devassy PV, (2006) 1 SCC 613 and Noor Saba vs. Anoop Mishra & Anr., (2013) 10 SCC 248 to contend that to hold anyone liable for contempt, the court has to arrive at a conclusion that the respondent have wilfully disobeyed the order of the court. It is reiterated that there is no wilful disobedience of the order of the court

6. I may first look at the chart filed by the learned senior counsel for the plaintiffs which depicts the process patent of the plaintiff and process of manufacture being followed by the defendant as stated in the replication. The two processes read as follows:-

7. There is no serious dispute of the contents of the aforesaid chart. It is clear that the process for manufacture being followed by the defendant is virtually identical to the process patent of the plaintiff. This clearly shows that the defendant is violating the patent of the plaintiff despite the interim order.

8. Even assuming, what is being pleaded is true, namely, that the process patent is prior art and the defendant have copied this prior art based on a patent which has expired then that would not absolve the defendant of having violated the interim order passed by this court. The said contention may be a valid contention to move the court for vacating of the interim order but cannot be a defence or a ground for disobeying the order of this court.

9. In my opinion, the plaintiffs have made out a prima facie

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valid case of breach of the interim order by the defendants. 10. As suggested by learned senior counsel for the plaintiff, I have taken a lenient view of the matter. To obviate any such repeat violation, I restrain defendant No. 1 from exporting to India the said product "Amoxycillin Trihydrate". Defendant No. 2 is also restrained from importing such product from defendant No. 1. 11. This application stands disposed of. CS(COMM) 78/2017