SUGEN INC Vs. A RAO

JUDGEMENT

(1.) This order shall dispose of the application filed by the plaintiffs under Section 151 CPC of the Code of Civil Procedure, 1908, whereby the plaintiffs seek direction to formally vacate the abeyance orders dated 9 th November, 2012 and 26 th November 2012 and restore the ex parte ad interim injunction order dated 22 nd June, 2012 passed by this Court and also direct defendant No.2 to recall the stock of its infringing products which infringe the patent No. 209251 including stocks of products containing the pharmaceutical compound SUNITINIB, being marketed by the defendants under the brand name SUNINAT.

(2.) Addressing arguments on this application, Mr. T.R. Andhyarujina, Senior Advocate appearing for the plaintiffs submit that vide order dated 27 th November 2012, the Hon'ble Supreme Court has set aside the order dated 24.9.2012, passed by the Assistant Controller of Patents and designs and consequently held that the order dated 8.10.2012 passed by the learned Single Judge of the Delhi High Court in the Writ Petition No. 6361/2012 as well as the order dated 12.10.2012 passed by the Division Bench of the High Court in Letters Patent Appeal No. 695/2012 would also stand set aside. Counsel thus submits that with the said order passed by the Hon'ble Supreme Court of India, the order dated 9 th November, 2012 and 26.11.2012 whereby the interim stay order dated 22.6.12 passed by this Court was kept in abeyance be now vacated and the ex parte ad interim injunction order dated 22 nd June, 2012 be restored back.

(3.) Learned senior counsel submits that it would be pertinent to give a brief background as to how and what lead this controversy knock the doors of the Hon'ble Supreme Court and under what circumstances the Hon'ble Supreme Court finally emanated to pass the said order dated 27 th November, 2012. The learned senior counsel submits that the plaintiffs have filed the present suit for permanent injunction against M/s NATCO Pharma Limited, to seek an order of restraint against them from making, selling, distributing or dealing in any product that infringes the patent rights of the plaintiffs in patent No. 209251 entitled "Pyrrole Substituted 2-Indolinone Protein Kinase Inhibitors". Counsel also submits that vide order dated 22 nd June, 2012 this Court granted ex parte ad interim injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from making, using, selling, distributing, advertising, exporting, offering for sale, and in any other manner, directly or indirectly, dealing in any product that infringes the subject matter of the Indian patent No. 209251 of the plaintiffs. Counsel further submits that M/s Cipla Ltd. who is a third party and not a party before this Court in the present case, had filed a post grant opposition challenging the legality and validity of patent No. 209251 and vide order dated 24.9.2012, the Assistant Controller of Patents and designs passed an order thereby revoking the said patent No. 209251. Counsel further submits that the said order of the Assistant Controller of Patents and Designs was challenged by the plaintiff in a writ petition bearing W.P. (C) No. 6361 of 2012 and vide order dated 8 th October, 2012, the learned Single Bench of this Court passed a restraint order thereby restraining the respondent No. 2 therein (M/s Cipla Ltd.) from marketing the generic version of its drug. Counsel further submits that the aforesaid order dated 8.10.2012 was challenged by M/s Cipla Ltd. before the Hon'ble Division Bench of this Court by way of LPA No. 695/2012 and the Hon'ble Division Bench dismissed the said appeal filed by M/s Cipla Ltd. vide order dated 12 th October, 2012, with the observations that the said order of the learned Single Judge is only an interim arrangement, operative till the next date of hearing as the arguments on the stay application were yet to be heard by the learned Single Judge in the said matter. Dissatisfied by the order of the Hon'ble Division Bench, M/s Cipla Limited, respondent No. 2 in the said proceedings filed a Special Leave Petition bearing no. 34504-34505/2012 before the Hon'ble Supreme Court thereby challenging the order dated 8.10.12 passed by the learned Single Judge and order dated 12 th October, 2012 passed by the Hon'ble Division Bench of this Court. The Hon'ble Supreme Court of India passed an ex parte order dated 8 th November, 2012 thereby staying the operation of the aforesaid orders dated 8 th October, 2012 and 12 th October, 2012 and thereafter, placed the matter for hearing on 19 th November, 2012 at the request of the plaintiffs herein.