The ongoing biosimilar litigation between Roche and Indian generic companies is becoming more contentious with every passing day. ET’s Prabha Raghavan reported on July 15 that both Roche and Biocon are now suing each other for contempt before the Delhi High Court. As Rahul had reported earlier over here, Justice Manmohan Singh had passed orders in an earlier litigation restraining Biocon and its partner Mylan from using the name Herceptin (or associated Indian trademarks) while marketing its drug although he did permit both companies to use the INN Trastuzumab. As I explain in an earlier post critiquing the judgment, it is rather odd to allow the defendants use the INN but not the trademarks owned by Roche since the purpose of the INN is to signify that the drugs are in fact the same.
In any case, as per the ET report, Roche “took issue with the mention of Herceptin (sold as Herclon in India) by Biocon at an international scientific conference related to the results of clinical trials on its trastuzumab” on the grounds that Biocon was restrained from making such references by the Delhi High Court. Roche apparently also argued “alleged contempt over Biocon using the name ‘Herceptin’ in the approval process of its trastuzumab drug in the US”. While I seriously doubt the sustainability of the second claim since the Indian court cannot regulate Biocon’s conduct in territories beyond its jurisdiction, the first claim regarding Biocon’s reference to Herceptin is likely to cause problems for Biocon. The reason for this, I speculate, is the confusion caused by the Division Bench which heard the appeal against Justice Manmohan Singh’s judgment. The DB’s first day order accessible over here is confusing. It says that both parties would be governed by the position prior to Justice Manmohan Singh’s judgment on April 15, 2016 i.e. the legal position on April 14 would continue to regulate the parties. I’m not sure of the legal position on April 14 in this case because there has been a long series of litigation/appeals between both parties since Justice Manmohan Singh’s first ex-parte injunction on February 5, 2014. This mess could have perhaps been avoided if the Division Bench was more precise with the wording of its order. In any case, Justice Hima Kohli has scheduled the contempt petitions for November – the true intent of the contempt application I suspect is to influence the hearing that was conducted today before the Division Bench – I don’t know of what happened today in court.
The ET article also reports that Biocon has also filed a contempt application “alleging Roche of making disparaging statements leading to a distorted impression of the Indian biotech company”. Quite frankly, disparagement is a separate cause of action warranting a separate lawsuit and I’m not sure how this is covered under contempt law.
The other series of interesting litigation ongoing before the Delhi High Court is the litigation launched by Roche against Hetero, in May, over the launch of a biosimilar of Roche’s Avastin. Rahul had blogged about it over here. This case was originally before Justice Valmiki Mehta who had asked Roche to explain its rights were affected by Hetero’s launch of a biosimilar. As I explained in an earlier post Justice Manmohan Singh had claimed Roche’s civil right was affected, although he really doesn’t explain the nature of this civil right.
Before the next date of hearing, the roster of the High Court changed and Justice Mehta was moved out of the original side of the Delhi High Court. Thereafter the case was posted before Justice Hima Kohli – when the case came up before her on July 8, 2016 Hetero apparently argued that the case was ‘part-heard’ by Justice Mehta which meant that a new judge could not hear the case until Justice Mehta released the matter from his board. Roche disputed this account. Justice Mehta has a tough reputation and is known to reject suits quite liberally at the preliminary stage and it is quite likely that Roche doesn’t want the matter to be heard by him. He’s also supposed to be transferred to Gujarat High Court which means that the arguments could be disrupted half-way. Regardless of how he rules, I don’t think this matter would qualify as part heard because Justice Mehta had only framed the issue that he wanted to hear arguments on. He didn’t actually hear any substantive arguments. In any case Justice Hima Kohli ordered the suit to be placed before Justice Mehta on July 15 – the court order of that day isn’t available on the High Court’s website. Any tips would be welcome.
[Update 23:45, July 21, 2016: A reader has updated us that the case is going to be heard by Justice Kohli on August 23 on the points of issuance of notice or objections thereto].