As Shamnad just blogged, we’ve kickstarted the I-3 series, where we interrogate interim injunctions, particularly ex parte injunctions in patent cases.
In the past, we’ve consistently highlighted the inequity of interim injunctions in patent cases, especially when they’re awarded without even hearing the other party to the dispute.
Over the course of this post and the ones that follow, I will be examining cases in which ex parte “interim” orders have been awarded, taking pains to highlight the attitude and mind-set that seems to pervasively inform our judiciary when handling complex patent cases.
In Part II of her excellent analysis of Symed’s linezolid line of cases, Rupali notes the law relating to ex parte injunctions, which provides that both parties must subsequently be heard on priority, avoiding undue adjournments. She also highlights that after 27 hearings, the injunction has still not been vacated! What is more worrying is that even the judges do not appear to have taken the sheer inequity of such a prolonged injunction seriously.
If we were to break down the reasons for the delay in vacating this injunctions, here is a non-exhaustive list: not enough time to hear the matter when it came up, denying the defendant’s request to have an advance hearing on his application to vacate the interim order, one instance where hearing the case was “not possible” on a given day, and an instance of the matter going unheard because the judge happened to be on leave.
My claim is that such delays are not exceptional – they are endemic to the system. To substantiate, I will be profiling a number of cases over the coming days, starting with Issar Pharmaceuticals v. Vinod Dua.
In this case, the plaintiff obtained an ex parte injunction from Justice Manmohan Singh restraining the defendants from manufacturing or selling products that allegedly infringed upon her patent. (We blogged about it here.) It took three months for the next hearing, in which the defendants appeared in person. On that date, Justice VK Jain directed that the matter be listed before the court a full four months later, while simultaneously extending the injunction to remain in force until then. Meanwhile, the defendant’s IA under Order 39 Rule 4 of the CPC, in which they presumably contested the ex parte injunction, was heard over a month after the defendant filed the application. It’s important to note here that this month’s delay in deciding whether or not the injunction could be vacated is neither extraordinary nor unheard of – the delay was to allow the plaintiff to file her written response to the IA. In light of the obvious urgency of a situation in which the defendant’s stocks of a product are sitting idle in his warehouses, one wonders what possible justification could be advanced for the amount of time granted to the plaintiff here. Meanwhile, five weeks after the defendant filed the IA, and over four months since the injunction came into force, the court still did not hear the arguments in their entirety, and did not rule on the application to vacate the injunction. Time has a tendency to pass, and that tendency, unfortunately, is unaffected by such petty matters as court cases. Over six months after the injunction was issued, the IA was still being heard, and the fact that the judge concerned was on leave in one occasion only served to prolong matters further. Next, the defendants’ counsel requested a postponement, leading to another month’s delay. After another day in court, the IA was still pending, and the presiding judge ordered it to be listed two months later. Two months passed, the appointed date arrived, only for the advocates to find that the judge wasn’t holding court before lunch on the day. Immediately thereafter, the plaintiff seems to have filed an IA claiming that the defendant was not in compliance with the interim order, and the defendant seems to have been perfectly happy keeping its distance from the court for another seven months. At the end of this period, the court expresses its frustration, and Justice Muralidhar imposes costs of Rs. 10,000 on the defendant. The same order, however, goes on to direct that the defendant’s IA (seeking vacation of the injunction) be listed two months later. The two months pass, the IA is never discussed, and it’s another eight months before the interim orders are even spoken of again – this time when the plaintiff alleges that the defendant has again been acting in violation of the original injunction, to the defendant’s denial, which the court records. Finally, more than two years after they began, pleadings have been completed in the defendant’s original IA, questioning the injunction. As the matter stands right now, there still seems to be no ruling on vacating the original, ex parte injunction.
In total, the ex parte order has been in force, effectively, for thirty-six months and counting. Let’s examine this situation with the guidelines laid down by the Supreme Court in Ramrameshwari Devi v. Nirmala Devi for the grant of ex parte injunctions. The judgement specifically takes note of several troubling phenomena that feature prominently in the Issar case, as well as several other recent patent disputes. First, it notes that parties are perfectly happy to prolong litigation in a kind of war of attrition, seeking to wear out the adversary’s patience and legal resources rather than coming to terms with the law. In the Issar case, it seems to be the defendant, rather than the plaintiff, who has employed this tactic. From a reading of the court’s orders, it appears that the defendant has first filed an IA contesting the injunction, and then gone about disregarding the interim order altogether.
Other breaches of the Supreme Court guidelines are evident. In Ramrameshwari Devi, the apex court held that ex parte injunctions may be granted in unavoidable scenarios. However, the court has an obligation to record that in case the suit is dismissed, the plaintiff is bound to pay full restitution to the defendant. Most importantly, the Supreme Court also mandated that where ex parte injunctions are issued, the court must attempt to dispose the injunction application as soon as possible. An alternative, more “bright line” rule was proposed by the Supreme Court: limit the life of the ex parte order to seven days, to nullify the possibility that plaintiffs can benefit from the continuation of ex parte orders beyond their sell-by date. Neither of these guidelines appear to have been followed in the Issar case – over two years from its issue, the validity of the ex parte order remains undecided by the Delhi High Court.