NOVARTIS AG Vs. MEHAR PHARMA

JUDGEMENT

(1.) THE plaintiffs have moved the present Notice of Motion in the suit seeking reliefs in terms of prayers (a) and (b) thereof, inter alia, seeking a restraint order against the defendants from manufacturing for sale, sell, marketing and exporting their anti cancer drug composed of the "b-crystalline form of imatinib Mesylate salt" under the brand name "veenat" or any other brand name till such time the exclusive marketing rights granted in favour of the plaintiffs on November 10, 2003 and gazetted on December 13, 2003 subsists. The plaintiffs also seek an order of appointment of a Court receiver in terms of prayer (e ).

(2.) THE plaintiffs submit that they are the holders of exclusive marketing rights (hereinafter referred to "emr") granted under Chapter IV-A of the patents Act, 1970 (hereinafter referred to "the Act" ). Section 24-B of the Act deals with grant of EMR. It is submitted that since the plaintiffs have been granted an EMR, akin to a patent right by an expert statutory authority, i. e. the patent office, the plaintiffs are entitled to the temporary injunction. The Patent Office deliberated on the matter for one and a half years and carried out an intense examination of the matter before the EMR was finally granted. The plaintiffs rely on statutory Illustration (e) of section 114 of the Evidence Act, 1872 which says that Court may presume that judicial and official acts have ben regularly performed.

(3.) IT is further submitted that under the EMR granted on November 10, 2003, the plaintiffs have the following exclusive rights i. e. , "now, therefore the said applicant is hereby granted, subject to the provisions of the law for the time being enforce, the exclusive right to sell or distribute the B-CRYSTAL-LINE FORM OF IMAINTNIB MESYLATE IN ITS DOSES FORMS as approved by appropriate authority, in India by their agents or their licensees. " the exclusive right above said shall stand terminated at the end of five years from the date of grant of exclusive marketing right, or on the date of grant of patent or on the date of rejection of application for the grant of patent in India, whichever is earlier. In respect of this very right the Hon'ble High court of Madras granted an order of exparte injunction in favour of the plaintiffs in Suit Nos. 5-9 of 2004. Subsequently by a detailed order dated April 28, 2004 the High Court of Madras has confirmed the aforesaid order of the ex. parte injunction and has been pleased to grant interim injunction pending the suit pending before that High Court restraining the defendants herein from infringing the EMR in any manner. Further the plaintiffs submit that although the said judgment and order has been appealed in Appeal No. O. S. A. No. 170 of 2004, the operation and implementation of the said order by the division Bench of the Madras High Court has not been stayed. The plaintiffs are, therefore, entitled to an order or injunction from this High Court against the present defendants. The plaintiffs further submit that the EMR gives an exclusive right all over India and if the Hon'ble High Court of one State as restrained the defendants, it would be just and proper that this Hon'ble High court may also injunct the present defendants accordingly. Undisputedly the two actions are identical, being proceedings against similarly situated defendants and relying on the same evidentiary material which establishes the identical nature of the impugned drugs of all the defendants, regardless of jurisdiction.