IN THE HIGH COURT OF DELHI AT NEW DELHI
  
   19.12.2008
  
  Present : Mr. Pravin Anand with Ms. Taapsi Johri, Advocates for the
  plaintiffs.
  
   CS(OS) No. 2680/2008
  
  The plaint be registered. Issue summons to the defendants upon the
  plaintiffs taking requisite steps, returnable before the Joint Registrar on 6th
  March, 2009.
  IA No. 15775/2008 (u/S 149 CPC)
  The counsel for the plaintiffs states that the court fee has already been
  deposited. The time for filing the full court fee is extended till filed.
  The application is disposed of.
  IA No. 15773/2008 (u/S 151 CPC)
  The documents in accordance with rules and original documents be filed not
  later than with the filing of the replication, if any.
  The application is disposed of.
  IA No. 15772/2008 (u/O 39 R 1 and 2 CPC)
  The counsel for the plaintiffs has drawn attention to the patent
  certificate dated 16th November, 2006 (date of filing 12th April, 2000) with
  respect to A COMPOUND 2-AMINO-THIAZOLE-5-CARBOXAMIDE. It is pleaded and argued
  that though the patent is in the aforesaid name but the invention otherwise is
  known as ?DASATINIB?. The counsel for the plaintiffs has argued that the patent
  subject matter of the suit is an old patent and no proceeding for cancellation
  thereof is pending. It is further stated that the defendants have applied to
  the Drug Controller General of India for marketing a drug violating the
  
  
  aforesaid patent of the plaintiffs, though no approval for marketing is stated
  to have been given to the defendants as yet. The counsel for the plaintiffs has
  also drawn attention to the various communications sent to the defendants,
  bringing to the attention of the defendants the aforesaid patent of the
  plaintiffs and reminding the defendants of its statement in relation to another
  product to in respect of which the defendant had assured the plaintiffs that
  they were committed to honour and respect the intellectual property rights. The
  plaintiffs have in the said communications referred to both DASATINIB and A
  COMPOUND 2-AMINO-THIAZOLE-5-CARBOXAMIDE. It is stated that no reply whatsoever
  has been received from the defendants to the aforesaid communications.
  Considering the conduct of the defendants of having replied to the earlier
  communication of the plaintiffs in relation to another product, the silence of
  the defendants this time around when the plaintiffs appraised the defendants
  about its patent and warned the defendants that the drug for which the
  defendants have sought approval for marketing is in breach and violation of the
  said patent of the plaintiffs, is surprising.
  The counsel for the plaintiffs has further submitted that there is no
  procedure before the Drug Controller General of India of entertaining the
  opposition of the plaintiffs and/or for satisfying that the drug, approval for
  marketing whereof has been applied for is not in violation of the patent of any
  other party/person. It is stated that for this reason only no representation has
  been made by the plaintiffs to the Drug Controller General of India.
  Though the defendants address is of outside the territorial jurisdiction
  of this Court but it is stated that the defendants are carrying on business in
  Delhi and have an office in Delhi with respect whereto additional affidavit will
  be filed. Cause of action is pleaded to have accrued to plaintiffs within
  territorial jurisdiction of this Court.
  The plaintiffs have made out a prima facie case for grant of ex parte ad
  interim order.
  The defendants are restraining from manufacturing, selling, distributing,
  advertising, exporting, offering for sale or in any manner dealing directly or
  indirectly in any product infringing the plaintiffs? patent subject matter of
  the suit bearing No. 203937.
  The plaintiffs have also sought ex parte relief of restraining the
  defendants from pursuing their application before the Drug Controller General of
  India. It is expected that the Drug Controller General of India while
  performing statutory functions will not allow any party to infringe any laws and
  if the drug for which approval has been sought by the defendants is in breach of
  the patent of the plaintiffs, the approval ought not be granted to the
  defendants. The plaintiffs to within one week make a representation to the Drug
  Controller General of India making out a case for the drug for which approval
  has been sought by the defendants being in breach/violation of the patent of the
  plaintiff.
  Issue notice. Reply be filed within four weeks. Rejoinder, if any, be
  filed within four weeks thereafter.
  To be listed for hearing after completion of service, pleadings and
  admission/denial of documents.
  The provisions of Order 39 Rule 3 CPC be complied within one week.
  IA No. 15774/2008 (u/O 26 R 9 and 10 CPC)
  The counsel for the plaintiffs does not press this application.
  The application is dismissed as withdrawn with liberty to apply afresh if
  need arises.
  Dasti.
  
  RAJIV SAHAI ENDLAW,J
  December 19, 2008
  rb
  
  
  
  #14