High Court of Delhi

Indoco Remedies Ltd. Vs. Bristol Myers Squibb Holdings Ireland Unlimited Company and Ors.

MANU/DE/1737/2020

18.09.2020

Intellectual Property Rights

Court cannot grant interlocutory injunction, unmindful of the existence of a prima facie case merely on basis of public interest

Present application, preferred by the Appellant praying for permitting the applicant to manufacture and sell its product "APIXABID", a generic product of the formulation "Apixaban", during the COVID-2019 pandemic. Further, prayer is for permission, to the Applicant, to sell, and authorise the sale of, approximately 58,000 strips of APIXABID, stated to have been manufactured by the Applicant, prior to the passing of the judgment, dated 24th December, 2019, by the learned Single Judge.

As on date, the order dated 24th December, 2019, of the learned Single Judge, continues to hold the field. Short of merits, this Court is unaware of any law, which would permit interference, with the said order, or frustrate the operation thereof, by way of any interlocutory directions.

Even if it were to be assumed, that there is a shortage of Apixaban, and that the drug is needed for COVID-2019 treatment, that cannot empower present Court to allow clearing of products which infringe the patent of Bristol Myers and, thereby, allow violation of the injunction granted by the learned Single Judge vide order dated 24th December, 2019, without returning a finding, in the first instance, that the order is prima facie, unsustainable on merits. Grant of interlocutory relief, it is well settled, requires cumulative satisfaction of three indicia of existence of a prima facie case, balance of convenience and irreparable loss to the person seeking interim injunction, were injunction not to be granted.

The Supreme Court, in its decisions in Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. added, as another important criterion, the element of public interest. That, however, does not mean that, merely on supposed public interest, a Court can grant interlocutory injunction, unmindful of the existence of a prima facie case, or the considerations of balance of convenience and irreparable loss. Far less could any such direction be granted where, as on date, the judgment dated 24th December, 2019, of the learned Single Judge, is still in place, merely on the ground of perceived public interest.

Present Court have also perused, minutely, the material placed on record, by the applicant, as demonstrating that public interest lay in allowing the sale of the aforesaid 58,000 strips of APIXABID. Even cumulatively, the material does not disclose any such overwhelming public interest, as would justify the grant of the reliefs prayed in the application.

The perception, on the part of the applicant, that there is a shortage of affordable Apixaban in the market and that, therefore, permission to sell the 58,000 strips of APIXABID, manufactured by it, ought to be granted, is merely a perception, and nothing more. The material on record is hopelessly inadequate to sustain the submission. Application dismissed.

Relevant

Ramniklal N. Bhutta v. State of Maharashtra MANU/SC/0279/1997
and Raunaq International Ltd. v. I.V. R. Construction Ltd. MANU/SC/0770/1998

Tags : Public interest Permission Sale

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