C. Hari Shankar JUDGMENT
C. Hari Shankar, J.
(Video-Conferencing)
CM APPL. 16257/2020 in FAO(OS) (COMM) 3/2020
1. This application, preferred by the appellant in FAO (OS) (COMM.) 03/2020-M/s. Indoco Remedies Ltd. (hereinafter referred to as "the applicant")-contains two prayers. Prayer (a) is for permitting the applicant to manufacture and sell its product "APIXABID", a generic product of the formulation "Apixaban", during the COVID-2019 pandemic. Prayer (b) 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-which constitutes the subject matter of challenge in the appeal-stated to be lying with the applicant, or with its stockists, distributors and retailers.
2. Mr. Chetan Sharma, learned Senior Counsel appearing for the petitioner, submits, at the outset, that he was restricting his relief to the prayer (b) in the application, i.e. for permission to sell the 58,000 strips of APIXABID, manufactured by his client prior to 24th December, 2019.
A brief factual background.
3. FAO (OS) (COMM.) 03/2020 arises from CS (COMM.) 731/2019, preferred by the respondent M/s. Bristol Myers Squibb Holdings Ireland Unlimited Company (hereinafter referred to as "Bristol Myers"), alleging infringement, by the applicant, of Indian patent "IN 247381" (hereinafter referred to as "IN 381"), granted to Bristol Myers, in respect of "Lactam-Containing Compounds and Derivatives thereof, as Factor Xa Inhibitors".
4. The learned Single Judge, vide judgment, dated 24th December, 2019, impugned in the appeal, directed, by way of ad interim relief, maintenance of status quo as on 5th July, 2019, in respect of manufacture and sale of the products which, allegedly, infringed the suit patent.
5. It was opined, by the learned Single Judge, inter alia, that the suit patent IN 381 specifically disclosed Apixaban, and was valid till 17th September, 2022, so that the manufacture and sale of any pharmaceutical preparations of Apixaban by any other party, during the life of the said suit patent, without any license from Bristol Myers, would infringe the suit patent, resulting in irreparable loss to Bristol Myers.
6. The present applicant is one of the entities against which ad interim injunction has been granted by the learned Single Judge.
7. It may be noted, here, that substantially similar ad interim orders were passed by the learned Single Judge, in a batch of suits, preferred by Bristol Myers against various companies, allegedly infringing the IN 381 suit patent.
8. The alleged infringers were M/s. Torrent Pharmaceuticals Ltd., M/s. Cipla Limited, M/s. Emcure Pharmaceutical Limited and the present applicant.
9. Appeals have been preferred against all such orders, which have been consolidated and are presently being heard by this Court. One such appeal is FAO (OS) (COMM.) 03/2020, preferred by the present applicant.
10. As on date, therefore, it is clear that, as the ad interim order, dated 24th December, 2019, of the learned Single Judge, continues to operate, the applicant is not entitled to manufacture or sell its APIXABID product.
11. It is in such circumstances, when the appeals are pending before this Court and substantial arguments have been advanced therein, by the various appellants-including the present applicant-that, by way of the present application, the applicant seeks permission to sell the aforesaid 58,000 strips of APIXABID, purportedly manufactured by the applicant prior to the passing of the judgment dated 24th December, 2019, by the learned Single Judge.
12. Before pro........