In a surprise move the Bombay High Court, in an order dated 11th of November, 2011 has transferred Bayer’s writ petition, against the publication of Natco’s compulsory licensing application for Nexavar, to the Delhi High Court which is also hearing a patentinfringement suit filed by Bayer against Natco.
As we had blogged earlier over here, Bayer had challenged the Controller’s decision to publish the CL application, on the grounds that it had not been given a hearing on the question of whether Natco had established a prima facie case for a compulsory license. The grounds raised by Bayer in its petition are similar to what we had blogged over here, about the lack of evidence in Natco’s CL application.
The Delhi High Court in an order dated 13thof October, 2011 had recorded that both Bayer and Natco had agreed to adjourn the infringement suit until the CL proceedings had concluded before the Patent Office. However when Bayer filed the Writ Petition before the Bombay High Court, it claimed that it had never made such a submission to the Delhi High Court and that it was seeking a clarification from the Delhi High Court on these grounds. The Bombay High Court therefore decided to send back the entire dispute to the Delhi High Court.
I can’t understand the Court’s logic but then against the life of the law is not logic but experience. What I don’t understand is why Bayer is even challenging Natco at this stage and providing it a chance to correct its mistakes in evidence?
Well, I thought it was only the Supreme Court who could transfer any case/petition to any other High Court.
Case is not transferred to the Delhi HC, rather Mumbai HC argued that the proper jurisdiction to file petition is the Delhi HC and disposed of the petition with a liberty to the petitioner (Bayer) to move the Delhi HC. Now Bayer has to file a fresh petition with the Delhi HC.
Thank you for clarification. In fact your blog read that the Bombay High Court “has transferred Bayer’s writ petition, against the…”.
Hi Anon & Varun,
Only the Bombay High Court has jurisdiction in this matter because the CL application is being handled by the Patent Office in Mumbai. In fact the order records that both parties will not make territorial jurisdiction an issue before the Delhi High Court. This was necessary because the judges and the parties were quite aware that the Delhi High Court could have thrown out the petition on jurisdictional grounds.
I for one cannot understand how the Bombay High Court has disposed the matter in this manner. It should have just decided the petition and proceeded instead of delaying the proceedings by referring it to the Delhi High Court.
Prashant
I happen to go through the order of Bombay High Court. It does not say that the matter is transferred to Delhi High Court It says “Considering the said aspects, the above petition is disposed of with a liberty to the petitioner to move the Delhi High Court regarding the subject matter”.
In my opinion it can in by no stretch of imagination be called as transfer of the petition by Bombay High Court to Delhi High Court. The petitioner who has been given liberty to move Delhi High Court might not ultimately approach Delhi High Court. But if it is a transfer then it is a transfer and the matter is transferred to Delhi High Court. Accordingly the title to the blog which has been given as Bombay HC sends Bayer’s petition against NATCO’s CL to the Delhi HC is misleading.