CADILA PHARMACEUTICALS LTD. Vs. INSTACARE LABORATORIES PVT. LTD.

JUDGEMENT

(1.) Heard the learned advocates.

(2.) This appeal arises of the order dated 23rd March, 2001 made by the learned Asstt. Judge, Vadodara below Application Exh. 5 in Regular Civil Suit No. 11 of 2000. The appellant herein is the plaintiff no. 4 in the above suit. The respondents are the defendants. It is the claim of plaintiffs that the plaintiff no. 4 appellant is a pharmaceutical company dealing in manufacture of various pharmaceutical products. The appellant also manufactures antibiotics. Such antibiotics when consumed, affect the normal functions of the body, causing side effects like diarrhoea, womitting, dizziness, etc. A great deal of research is being made world over to counteract such side effects and to minimise them. Similarly, the appellant after spending enormous amount on research and development has invented a process which is unique in its nature. The appellant has produced an antibiotic which is successfully tested to have minimal side effects. The said antibiotic is a penicillin product combined with a dose of lactobacilli marketed under the name of 'LMX'. Ordinarily, combination of lactobacilli with antibiotic affects the lactobacilli and after certain period, such lactobacilli wither away losing their virllity. With a view to preventing the antibiotic affecting the lactobacilli, the appellant has evolved a process of coating lactobacilli thereby isolating the dose of lactobacilli from antibiotic substance by a thin protective film. Such protective film prevents antibiotic from reacting with the lactobacilli. Such combination medicine when consumed orally even after a long time, the lactobacilli are still effective and successfully counteract the side effects caused by the antibiotic. The process evolved by the appellant was submitted for patent before the concerned authority and after following the procedure prescribed under the law, the patent was sealed in the month of March, 2000. The appellant thus being the proprietor of a registered patent, has an exclusive right to manufacture and market its innovative medicine for a period of five years i.e., the appellant has a right to monopoly over the market with respect to the process invented by it for a period of five years. However, in utter disregard to the appellant's right to monopoly as aforesaid, the respondent no. 2, which too is a pharmaceutical company, has started manufacturing a similar combination drug, in the name of Hipen LB & Hipenox LB manufactured by following the same patented process, thus infringing the appellant's patent right. The said medicine is being marketed by the respondent no. 1.

(3.) The appellant and the three others, therefore, they have sued the respondents for infringement of their patent by filing the above referred Regular Civil Suit No. 11 of 2000. Pending the suit, the appellant and the other plaintiffs applied for interim injunction restraining the respondents from manufacturing the medicine 'Hipen LB' & Hipenox LB' and from selling it in the market. After granting initial ad-interim injunction, under the impugned order dated 23rd March, 2001, the learned trial Judge was pleased to reject the said application and to vacate the ad-interim injunction granted earlier. Feeling aggrieved, the appellant has preferred the present appeal under Order 43 Rule 1 CPC.