BAYER CORPORATION Vs. UNION OF INDIA

JUDGEMENT

(1.) The question for adjudication in both the proceedings is, whether the language of Sec. 107A of the Patents Act, 1970 permits export from India of a patented invention, even if solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import of any product.

(2.) W.P.(C) No.1971/2014 was filed seeking a mandamus to the Customs Authorities to seize the consignments for export containing products covered by Compulsory Licence including 'SORAFENAT' manufactured by respondent No.5 therein Natco Pharma Limited (Natco) and further seeking a direction to all the Customs Ports to not allow exports thereof.

(3.) It was the plea of the petitioner Bayer Corporation (Bayer) in W.P.(C) No.1971/2014 (i) that Bayer had filed CS(OS) No.1090/2011 for restraining Natco from making, importing, selling, offering for sale 'SORAFENIB', 'SORAFENIB TOSYLATE' or any other drug comprising 'SORAFENIB', 'SORAFENIB TOSYLATE' or any generic version of 'SORAFENIB', 'SORAFENIB TOSYLATE' or any other product subject matter of Bayer's Patent No.215758; (ii) that Natco, during the pendency of the suit approached the Patent Office for grant of Compulsory Licence against the said patent; (iii) that the Controller of Patents vide order dated 9th March, 2012 granted Compulsory Licence in Patent No.215758 under Sec. 84 of the Patents Act to Natco on the terms and conditions contained therein; (iv) that one of the said terms was that the Compulsory Licence was 'solely for the purposes of making, using, offering to sell and selling the drug covered by the patent for the purpose of treating HCC and RCC in humans within the territory of India'; (v) that Natco was however manufacturing the product covered by the Compulsory Licence for export outside India; (vi) that the export by Natco was contrary to the terms of Compulsory Licence and amounted to infringement of the patent within the meaning of Sec. 48 of the Patents Act.