The Mint and the ET report that a division bench of the Delhi High Court, hearing Roche’s appeal against the judgment of the single judge, have restained Cipla from exporting Erlocip to any country where Roche already has a patent for the drug. This is a mere restatement of the obvious and more over its a moot point as to whether the issue of export is even within the jurisdiction of the Delhi High Court. If Cipla does export to a country where Roche already has a patent for Tarceva then in that case it is within the jurisdiction of the courts of that country to initiate action against Cipla. However what seems to be obvious from the decision is that Cipla is free to export to a country which has not granted a patent for Tarceva for e.g. Nepal, Bangladesh. Cipla therefore is free to export to Nepal unlike Natco whose application for a compulsory license (for Tarceva) under S. 92(a) is still pending in the Patent Office.
An interesting question that arises from this ruling is whether Cipla can export to a country which has issued a compulsory license under the Doha Declaration?
Another issue on which the Division Bench has ruled is that only Cipla may manufacture a generic version of Tarceva and that no other generic manufacturer may use the judgment of the single judge as a precedent to enter the fray. This really doesn’t make sense since other generic manufacturers are free to follow Cipla’s strategy – that is manufacture the drug and wait to be sued by Roche. To the best of my knowledge there is nothing to stop other generics from not doing so.
The matter is posted for its next hearing on 12th of May.
