FMC CORPORATION Vs. NATCO PHARMA LIMITED

JUDGEMENT

(1.) This order decides I.A. 2594/2020, I.A. 2595/2020, IA 2596/2020, I.A. 4274/2020 and I.A. 5209/2020, preferred in CS (COMM.) 611/2019. I.A. 2594/2020, I.A. 2595/2020 and I.A. 2596/2020 have been preferred by the defendant, under Section 26 (2), read with Order VI Rule 15A, Order VII Rule 11 and Section 10, read with Order VII Rule 10, of the Code of Civil Procedure, 1908 ("the CPC"), respectively, whereas I.A. 4274/2020 and I.A. 5209/2020 have been preferred by the plaintiff under Order VI Rule 17 of the CPC.

(2.) Cs (COMM.) 611/2019, filed by the plaintiffs, alleges infringement, by the defendant, of Indian Patent No. IN 201307 (hereinafter referred to as "IN 307"), registered by the plaintiff in respect of a molecule which is known by the generic name 'Chlorantraniliprole', and is also, apparently fOr.the sake of convenience, denoted as "CTPR", and Indian Patent No. IN 213332 (hereinafter referred to as "IN 332"), covering "A Process fOr.Preparing a Compound of Formula 1" which covered, inter alia, the process of making CTPR. Accordingly, it seeks a decree of permanent injunction, restraining the defendant from infringing the said patents, and also claims damages. The prayer clause, in the plaint, reads thus:

(3.) Para 36 of the plaint avers that the plaintiff learnt, recently, of a suit, having been filed by the defendant before the City Civil Court in Hyderabad, fOr.a declaration of non-infringement in respect of IN 307 and IN 332, and fOr.a declaration that CTPR is covered by the written description of certain priOr.patents, which constitutes "priOr.art" and is, therefore, in the public domain, available to anyone who seeks to commercially deal therein. The said civil suit, numbered OS 867/2019, was filed, before the City Civil Court, Hyderabad, by the defendant, on 20th September, 2019, and impleads, as the defendants therein, E. I. Dupont De Nemours & Co. (the original patentee in respect of the CTPR suit patent, of whom the plaintiff claims to be an assignee, in respect thereof), as well as the present plaintiffs. It is averred, in the said plaint, that CTPR was disclosed in United States Patent 5998424 (US 424), US Patent 6020357 (US 357) and PCT International Publication WO 01/70671 (WO 71), much priOr.to the priority date of IN 307 and IN 332 which, therefore, constituted "priOr.art". The cause of action, fOr.filing the said suit, as disclosed in para 46 thereof, is the awareness, obtained by the plaintiff therein (i.e. the defendant in the present proceedings) of IN 307 and IN 332, and the applications fOr.registration of the said patents, filed by the present plaintiffs, on Or.around March 2019. Accordingly, the said plaint, as preferred in the City Civil Court, Hyderabad, prays thus: