Author: Sannidhi Mahapatra
In the matter of Indoco Remedies Ltd v. Bristol Myers Squibb Holdings [FAO (OS)(COMM) 3/2020], the Division Bench [Dhirubhai Naranbhai Patel, C.J. and C. Hari Shankar, J.] of the High Court of Delhi vide an order dated September 18, 2020, dismissed the Appellant’s application seeking permission to sell generic formulation of a drug ‘APIXABAN’, during the pandemic.
The present appeal has been filed against the ad-interim injunction, restraining Respondent from infringing the Appellant’s patent in its drug ‘APIXABAN’. The Appellant in this appeal seeks the permission to manufacture and sell its product ‘APIXABAID’, a generic formulation of ‘APIXABAN’, during the COVID-19 pandemic. Essentially, seeking the permission to sell 58, 000 strips of APIXABID, which was claimed to be manufactured prior to the impugned order.
The Appellant primarily relied on the ground of public interest, by highlighting the importance of the drug in therapy of COVID-19 and by arguing that its drug is cheaper than APIXABAN. The Respondent argued that the Appellant manufactured these 58,000 strips of APIXABID, in full awareness of earlier injunctive orders and that the manufacturing of the infringing product is not allowed. It was further contended that the appropriate remedy in this case would have been the compulsory license, rather than requesting court to pass an order in violation of its earlier order.
The court refused the Appellant’s application and held that, “Grant of interlocutory relief, it is well settled, requires cumulative satisfaction of three indicia of existence of a prima facie case, balance of convenience and irreparable loss to the person seeking interim injunction, were injunction not to be granted…To these criteria, the Supreme Court, in its decisions…added, as another important criterion, the element of public interest. That, however, does not mean that, merely on supposed public interest, a court can grant interlocutory injunction, unmindful of the existence of a prima facie case, or the considerations of balance of convenience and irreparable loss.”
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