Roche-Natco @ Delhi HC- Natco continues arguments


Yes, like yourselves, we were missing the Roche-Natco matter too, which accounts for today’s post, where we update you on the latest on what’s been happening at the Delhi High Court in the case. For those of you who are wondering what this is all about, I’d urge you to read our previous posts on the issue here, here and here.
By way of a quick recap, Swiss-based drugs multinational F Hoffman La Roche is fighting Natco Pharma, and specifically, the latter’s anti-cancer drug sold as “Erlonat”, in a patent infringement matter before the Delhi High Court. In our last encounter, Roche had concluded its arguments, and Natco was just about warming up. The arguments resumed sometime last week, which we provide you with an overview of today.

Clubbing Roche-Natco and Roche-Cipla?

A key development in the latest round of arguments was the judge asking whether or not Roche-Natco and Roche-Cipla should be heard together, keeping in mind that the issues were substantially the same. Or, in the alternative, the judge suggested that this matter should at least wait till the Roche-Cipla trial concludes. But senior counsel CS Vaidyanathan, appearing for Roche, was quick to counter that Roche-Cipla was already many weeks into its arguments, and that Roche-Natco could be substantially differentiated.

For those of you who are wondering what indeed is happening over at Roche-Cipla, we have news that the cross examination of the last witness is scheduled for the end of October 2010. Add another couple of months or so for final arguments to begin, which means that we should be seeing some action on that front hopefully by early next year.

Roche patent not being worked in India?

Natco, the defendants, represented by senior counsel Arvind Nigam, argued on lines indicated earlier, i.e., that since the subject-matter was the same, and the Roche-Cipla discussed similar issues, the interim order in that matter ought to apply in this case as well; that there was no bar in Indian patent law to challenging a patent at various stages of its existence; and that Tarceva and the patent no. 196774 were incongruous with each other.

There was a brief discussion surrounding the working of the patent itself, with Natco alleging that Roche’s patent was not being worked in India. Natco also suggested that whatever was available in India was imported, and therefore did not qualify as being worked. Readers will recall some discussion on this issue on the blog on the working of patents, which appears to be garnering increasing attention (and rightly so!, in my opinion) at the Patent Office. On its part, Roche clarified that it was in fact working the patents in India.

Public interest non-issue in temporary injunction or patent revocation?

The court also flagged some key issues during the course of arguments, including on our favourite topic, public interest. There appears to be a disinclination to consider public interest as a substantive point of adjudication at this stage, given its statutory presence in other aspects of patent law in India (e.g., compulsory licensing).

We look forward to seeing how matters progress in the case, which is scheduled next for October 26, 2010. And of course, you can be assured that we will report anything post-worthy here.

3 comments.

  1. AvatarAnonymous

    Regarding the last part of your post–

    From a legal standpoint, isn’t it true that sometimes public interest can play a major role in deciding a temporary injunction? Since it could tilt the balance of convenience and/or irreparable injury either way.

    However, the Court may be right to say that it doesn’t for patents because the statute has adequately taken care of it.

    Reply
  2. AvatarSumathi Chandrashekaran

    Anon – thanks for your comment. you are right on both counts. It appears that the court is focusing on the criteria for granting a temporary injunction in patent matters, considering statutory design. It remains to be seen how it adjudicates eventually on this matter.

    Reply
  3. AvatarAnonymous

    In case Roche is not practicing/working its patent in India and instead importing into India then is it not obligatory on part of Roche under Indian Patent Law to license the patent rights to potential infringer or else the offender is not infringing

    Reply

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