Roche has now officially wrapped up arguments on the interim injunction. It essentially tied together loose ends of its previous arguments.
Readers will recall that the Court had thought that it might be bound by the Division Bench judgement in the Roche-Cipla case, while deciding on the injunction here (Recall that the DB had refused the injunction. Read current status of Roche-Cipla here).
Roche used Supreme Court cases to argue that interim orders have no finality and cannot be considered precedents, and therefore the Roche-Cipla judgment on the interim injunction could not be considered here. Previously, the Court had enquired of the counsel as to how Roche-Natco was different from Roche-Cipla, and why the decison in the latter could not be applied here, since the pharmaceutical composition in question in both the matters is the same.
Roche then went into the issue of Natco’s attempt at getting a compulsory license for the drug in issue. It essentially returned to the principal requirements of grant of temporary injunction, including the establishment of a prima facie case, and the balance of convenience. Specifically, Roche argued that where there is an admission of rights of the patent by the Defendant, a temporary injunction will follow.
Roche also did some preemptive arguments, in preparation for the impending selection patent issue that Natco is likely to bring up in its arguments in re polymorph derivatives. Towards this, Senior Counsel CS Vaidyanathan ran through some cases and extracts from commentaries about what a selection patent is, and how every selection patent if invented/ selected by a different patentee will always infringe the genus patent unless a specific license is given to state otherwise. (NB: the last selection patent issue I recall making note of was in the Novartis Gleevec decision, but I will admit to my lack of understanding on the issue, and leave it to our learned commentators to pursue discussion on.)
So, Roche’s days behind the lectern are over – for now. Natco is expected to take over. They attempted to seek an extension till July 2010 for their counter-arguments, citing the illness of their Senior Counsel, and the INTA Conference in Boston where the briefing counsel was attending. Justice VK Shali, however, who is hearing the case, was fairly determined to hear the matter earlier, and noted this was a case that had caught his interest, and a longer break could interrupt the flow of arguments in the case. A-ha. Good for us, in any case. Arguments continue on June 2. The SpicyIP team shall be ever vigilant, and try to bring you as timely an update on that as possible.
