Tracking the litigation around Bayer’s Nexavar patent in India

For the last year or so, Bayer has been defending its Indian Patent No. 215758 for ‘sorafenib’, which is marketed under the brand name Nexavar and is targeted at patients suffering from liver and kidney cancers. (Image from here)

As we had reported in April last year, Bayer had sued Cipla for patent infringement, while Cipla counter-sued for revocation of the patent on grounds of invalidity and suppression of vital Section 8 information.

Earlier this year, Bayer sued NATCO before the Delhi High Court (CS (OS) No. 1090 of 2011) for infringing the same Nexavar patent. I’m not sure whether NATCO is counter-suing for invalidity. NATCO subsequently filed an application for compulsory licencing of the Nexavar patent before the Patent Office and this maybe an indication of the fact that NATCO is convinced of Nexavar’s validity. Rajiv had covered this compulsory licensing application in a post available over here.

The litigation over the Nexavar patent provides an interesting case-study of the duplication and contradictions in the Indian patent litigation system. When Bayer sued Cipla last year, Justice Bhat had managed to convince both parties to drop the proceedings over the interim injunction application and instead accelerate the matter directly to trial. As a part of the speed-tracking, Justice Bhat had appointed two scientific experts under S. 115 of the Patents Act, 1970 to assist the Court in determining the questions of patent validity and patent infringement. As we had reported earlier, Justice Bhat had also framed the issues that were required to be examined by the scientific advisors and as of today the scientific advisors have submitted their reports to the Court which is now presided over by Justice Gita Mittal.

The Bayer-NATCO litigation however has gone on an entirely different track. From the orders available on the website it appears that the Delhi High Court is hearing arguments on the interim injunction application filed by Bayer. Now, two issues arise with respect to this new development:

(i) Why is the litigation over the Nexavar patent being handled by two different judges within the same Court i.e. the Bayer-Cipla matter is being heard by Justice Gita Mittal, while the Bayer-Natco litigation is being heard by Justice Manmohan Singh? Given the inherent complexity of these patent matters, isn’t judicial efficiency better served by both matters being heard by a single judge?

(ii) Why is Bayer even pressing for an interim injunction against NATCO when it is not doing the same with Cipla? Even if the court does grant an interim injunction against NATCO, Bayer will still have to contend with the fact that Cipla will continue to sell in the market. So all that Bayer is actually doing is ensuring that Cipla maintains its market share and profits. How does that make any commercial sense? Am I missing something?

Apart from the litigation in the court, there have also been some interesting developments outside the Court room. Bayer’s counsels Dr. Sanjay Kumar and Arpita Sawhney had made the news last year for leaving Remfry & Sagar taking with them Bayer. They had then joined Lakshmi Kumaran & Sridharan (LKS), a leading IP law firm based out of Delhi and Chennai. Subsequent to their migration, LKS had filed a power of attorney claiming to represent Bayer in the litigation against Cipla. However as Legally India and one of our Anonymous friends’ have reported, Dr. Kumar has left LKS and setup his own shop – Perfexio Legal. It is thus likely that LKS is out of the Bayer litigation for now.

In my opinion, the need of the hour is for greater consolidation amongst various law firms since there are very few law firms in India which actually have the capacity and resources to tackle high-profile patent litigation. The market situation is ripe for best-friend partnerships with foreign law-firms, especially the British law firms, who have the expertise and resources to handle cutting edge patent litigation.

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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