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B Braun v PolyMed: Indian Poly Medicure wins medical device patent battle at EPO


shielded-catheterAs reported by the Economic Times, Poly Medicure (an Indian company that manufactures medical devices) has won a five year long patent battle against B Braun (German medical devices and pharma giant).

The patent litigation revolved around B Braun’s patents that cover certain features of intravenous (IV) safety catheters. The EPO revoked two of Braun’s patents after which Braun appealed to the Board of Appeals. However, the appeal was dismissed and the patents of B Braun stand revoked.

B Braun has initiated patent infringement suits against Poly Medicure in several countries such as Germany, Italy, Spain, Australia and India.

In India, B Braun had applied for an interim injunction against Poly Medicure in 2009 in the Delhi High Court. B Braun’s patent covered safety IV catheters with an injection port and a self activating needle stick protection. The invention sought to redress problems faced by healthcare workers who are exposed to the dangers of transmission of various blood borne pathogens, including AIDS and hepatitis, while administering and inserting these IV catheters. This invention claims to prevent the risk of accidental contamination.

The Single Judge, however, denied granting an interim injunction as a prima facie case was not made out. The court held that the mere grant of a patent does not in itself entitle the plaintiff to an injunction. The existence of prior art in the US, the fact that needle guards were used by companies for decades as well as the fact that Poly Medicure’s needle was a little different from B Braun’s patent, lead the court to deny an injunction. This matter was then appealed and decided by a Division Bench (the decision does not seem to be available online).

As our readers might remember, Shamnad had covered the procedural irregularities that were involved in B Braun’s patent grant in India. B Braun had attempted to amend its patent after date of grant. In such a scenario, the amendments should have been advertised (since they were ‘post grant’ amendments). Since they were not published, these amendments were effectively treated as ‘pre grant’ amendments and therein lay the irregularity. Polymed filed a complaint before the Ministry of Commerce for instituting an inquiry into this procedural irregularity. See also Prashant’s post here.

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Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

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