SHOMENATH ROY CHOWDHURY Vs. ESKAG PHARMA PRIVATE LIMITED

JUDGEMENT

(1.) The petitioner claimed to be the owner of the patent and proprietor of a therapeutic composition of topical applications to facilitate healing of wounds and process for preparing the same using sucralfate, tinidazole and providone iodine and marketing the finished product under the trademark "Dresin". The invention encompasses a process for preparing the said therapeutic composition and have shown a marketable result in treatment of the wounds on skin, including the different types of skin ulcers and further prevent bacterial, fungal and viral infection generally associated with the wounds. The ingredients for such therapeutic composition are mixed in a definite percentage which enhances and/or aggravates its properties giving a remarkable result in healing the wounds and other skin diseases. The petitioner has also disclosed the process of mixing those ingredients at a definite degree of temperature and claimed to have marketed the same which acquired a good reputation and demand from various corners.

(2.) It is alleged that the respondent No.1 is also manufacturing and marketing its product under the product name "Sufrate TP" indicating the ingredients used for the said product. It is apparent and evident from the level and packaging used for such product that similar ingredients are used in same percentage and claimed to have been giving the same relief and its application in healing the wounds. The petitioner derives such knowledge in the month of December, 2014 and caused a notice through its patent attorney on 7th January, 2015 to cease and desist from manufacturing and/or marketing the same product having similar and identical compositions and/or formulation as well as the process with further demand of damages. The respondent No. 1 has replied the said letter on 13th February, 2015, though the said reply has not been annexed with this application. It is submitted on behalf of the petitioner that the same is an act of oversight and the petitioner never intended to suppress such material fact. In fact, on the day when the injunction application was moved for an ad interim order, the learned Advocate for the petitioner disclosed the said reply and handed over a copy thereof to the Court. The defence which has been taken in the said reply appears to be primarily under Section 3(e) of the Patents Act, 1970. It is stated that the ingredients used for such product are well - known and there is no invention as claimed by the petitioner. It is further disclosed that since 1996, the respondent No.1, in its registered trademark owner, is using its product under the trademark "Sufrate/Sufrate MP" in respect of pharmaceutical and medicinal product and it is only from the month of May, 2009 they have removed one of the ingredients and inserted the other one and is marketing the product under the said trademark.

(3.) What is contended by the respondent No.1 is that there cannot be a patent for the ingredients used for making the product which are well -known in the medicinal field and, therefore, the petitioner cannot injunct the said respondent from marketing and/or selling its product in its trade name and mark which is distinct, separate and not even deceptively similar to the trademark of the petitioner.