Last week, we examined a new articulation of the public interest standard for the grant of interim injunctions in pharma patent litigation. In Bayer v. Ajanta, Justice Gauba of the Delhi HC held that commercial exports of prima facie infringing products covered by a non-worked Indian patent did not merit injunctive relief, on the ground that such exports generated employment and tax revenue for the state, and it was therefore in the public interest to allow them to continue.
There are obvious problems with this approach, and these were flagged out in my post and subsequently fleshed out more fully elsewhere. In a nutshell, very little large-scale commercial infringement is carried out by fly-by-night operators, meaning that almost all large infringers generate (often substantial) employment and tax revenue. Adopting Justice Gauba’s public interest analysis would be tantamount to eviscerating injunctive remedies altogether, depriving patentees of a valuable enforcement tool.
An anonymous comment on last week’s post directed me to a more recent order from the Delhi HC which appears to recalibrate the public interest standard.
Bayer v. BDR
Adding to the laundry list of defendants that I catalogued in my previous post, Bayer appears to have sued BDR Pharmaceuticals over the same drug (Vardenafil, IN225529) in February. Bayer’s averments appear to have been identical to the ones it made against Ajanta (see previous post).
In the hearing on 14 February, BDR cited Justice Gauba’s order in Ajanta to argue that an injunction was not merited in its case either. In addition, BDR added that its exports “earn foreign exchange for India” and “encourage economic activity” in India. Justice Endlaw gave short shrift to BDR’s arguments, and categorically rejected the Ajanta order’s precedential value. Having summarily dismissed BDR’s submissions, Justice Endlaw ordered the case to be listed in two days to allow time for Bayer’s counsel to take instructions.
Bottomline
The Ajanta order must have surely come as a scare for patentees, and BDR rightly restores the position on public interest. Furthermore, BDR would be authoritative over Ajanta both because it comes later in time, and contains affirmative reasoning for its rejection of the latter.
The peculiar facts of Bayer’s recent litigation have exposed something of a lacuna in Indian law, arguably created by Franz Xaver Huemer. The Delhi HC has been equivocal in delineating the exact contours of Huemer‘s rule (precluding injunctive relief for the infringement of non-worked patents). While Ajanta was content to extend the rule to infringement solely through export, BDR narrows Huemer down to exclude infringement that does not supply the Indian market from its ambit.
Epilogue
On 16 February, the BDR case was referred to mediation. It is set to be listed again on 8 March.
(Thanks to the anonymous commenter who pointed me to this order!)
