Update on Bayer-Cipla patent infringement suit: Nexavar patent infringement suit before the Delhi High Court goes directly to trial


In a significant departure from the standard practice in Indian patent trials, Justice Ravinder Bhat, who is presiding over the Nexavar patent infringement suit filed by Bayer against Cipla, has ordered, on the 23rd of July, 2010, that the suit be expedited directly to trial. We had previously blogged on this case over here. In the normal course of events the Court would have first disposed the interim injunction application after which the matter would be directed to trial. This however did not make much sense in the context of patent infringement suits where it simply impossible for a judge to take a call on prima facie infringement or validity.

Justice Bhat has now ordered both parties to file expert witness affidaivts which will submitted with the remaining material to a ‘scientific advisor’ appointed by the Court under Section 115 of the Patents Act, 1970. This scientific advisor will then depose in court and be subject to cross-examination by either party. Surprisingly both parties seem to have waived their right to cross-examine each others witnesses, without even having seen other’s affidavits!!!!

Nevertheless, Justice Bhat deserves a round of applause for this judicial innovation.
The next date of hearing, for framing of issues, is on the 22nd of September, 2010.

Since I am unable to give you a direct link to the Delhi High Court website, I have pasted the entire Order below.

IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 523/2010

BAYER CORPORATION and ANR ….. Plaintiffs
Through : Sh. Shanti Bhushan, Sr. Advocate with Sh. Sanjay Kumar, Ms. Arpita, Sh. Vineet Rohilla and Sh. Sudhindra Tripathi, Advocates.

versus

CIPLA LTD ….. Defendant
Through : Sh. Rajiv Nayyar, Sr. Advocate with Ms. Pratibha. M. Singh, Advocate.

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
O R D E R

23.07.2010

1. In this case, the plaintiffs claim that the defendants have infringed the patent of their pharmaceutical drug Sorafenib Tosylate. It is submitted that this formulation is used to treat renal cancer.

2. The parties have completed pleadings in the suit. The defendants have also preferred a Counter-claim, urging that the plaintiffs? patent requires to be cancelled, in terms of Section 64 read with Section 107 of the Patents Act, 1970.

3. The Court had suggested on the previous date of hearing that the instead of proceeding to hear the interim application, the parties may proceeding to trial straightaway and in the first instance, the matter may proceed after exchange of documents and the experts affidavits.

4. Learned senior counsel agreed that the temporary injunction application may also be considered and disposed of along with the suit at the final hearing stage.

5. The parties agree that for the present, there is no need to cross- examine the experts, whose affidavits they are relying upon and that it would be sufficient if at the trial of the scientific expert, who has made the report to the Court, is permitted to depose in the Court during which course either or both of the parties may question him on relevant matters.

6. In view of the above development, it is directed that:
(i) parties shall exchange the documents relied upon by them within two weeks.
(ii) The affidavits of the experts of the plaintiffs shall also be filed within the said period of 2 weeks. The defendants/counter-claimants shall thereafter file the affidavits of their experts within six weeks from today. The parties shall endeavor to present common point which arise for trial, after prior consultation.
(iii) The parties agree that on the basis of such materials, i.e. documentary evidence of the affidavits of the experts of the contesting parties, the Court may proceed to appoint an expert under Section 115 to apprise itself on such of the scientific or technical materials as is necessary for this case.

To this end, the parties agree to, on the same date, present to the Court:
(i) List of common names of such of the scientific/technical experts to whom the matter may be referred.
(ii) Points of reference to such expert.

7. The Controller of Patents is directed to make available to the plaintiff and the defendants/counter-claimants, within two weeks from today, a list and details/particulars of the scientific advisors/technical experts, under Rule 103 and 115, available with him, to facilitate a speedier resolution of the disputes in this case.

List on 22.09.2010, for framing issues and further proceedings.

S. RAVINDRA BHAT,J

JULY 23, 2010

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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