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?