The main legal point established in the judgment is that the threat of infringement by the defendants within the local limits of the court was sufficient to establish the cause of action within the jurisdiction, emphasizing the importance of the plaint averments in determining the cause of action and territorial jurisdiction.

S. RAVINDRA BHAT, J.

1. This is an interlocutory appeal by the second defendant (hereafter “Shilpa”) against the order of a learned single judge of this court dated 11-10-2013 in CS (OS) 2801/2012 dismissing its application under Section 20 read with Order VII Rule 10 of the Code of Civil Procedure, 1908 (“CPC”). Shilpa sought an order seeking return of the plaint to the Plaintiff for presentation in the appropriate court.

2. The suit was filed by the first two respondents (hereafter collectively “Bristol Myers Squibb”). Shilpa is arrayed as the second defendant, and its Managing Director, Mr. V C Bhutada, (“MD”) as the first defendant. Both are located at Raichur, Karnataka. The other party impleaded is the third defendant (hereafter “Natco”). The suit seeks a permanent injunction restraining infringement of Indian Patent No. 203937 (“the subject patent”), damages, rendition of accounts, delivery up of the infringing products and costs. Bristol Myers claims that it has a strong presence in various therapeutic areas, including cancer, cardiovascular disease, diabetes, obesity, psychiatric disorders, Alzheimer's disease, Hepatitis, HIV/AIDS and rheumatoid arthritis. It claims to have invented an Active Pharmaceutical Ingredient (“API”), DASATINIB, for which it was given patent protection in several countries. In India, the subject patent was granted on 12-04-2000 to Bristol Myers, which received marketing approval for DASATINIB from the Drug Controller General of India (“DCGI”) on 30-08-2006 and the second Plaintiff has been marketing DASATINIB under the trade name 'SPRYCEL' across India.

3. DASATINIB – say the plaintiffs – is an anti-cancer molecule used in the treatment of adults with chronic, accelerated or myeloid or lymphoid blast phase chronic myeloid leukemia (“CML”) with resistance or intolerance to prior therapy, including imatinib, as well as, in the treatment of adults who have a particular form of acute lymphoblastic leukemia (“ALL”) called Philadelphia chromosome-positive (Ph+) ALL. CML – say the plaintiffs – is one of the most common forms of leukemia. Though imatinib mesylate, a small molecule tyrosine kinase inhibitor (“TKI”), was the designed drug for CML, yet, due to the fact that some imatinib resistant CML emerged, a new generation of inhibitor, such as DASATINIB, was invented.

4. Shilpa with its principal place of business at Raichur, Karnataka, is a bulk drug manufacturer, which produces, sells and offers for sale and export bulk Active Pharmaceutical Ingredients, fine chemicals, intermediates, herbal products and specialty chemical products to various pharmaceutical companies within the domestic and global markets. The first defendant is its managing director. Bristol Myers Squib alleges that these defendants have tied up with various generic pharmaceutical companies in India, including with Natco – which sells and offers for sale various generic products all over India, including within the jurisdiction of this Court. Bristol Myers Squib claimed that in the third week of August 2012, it became aware that Shilpa was in the process of manufacturing DASATINIB (API), covered by the subject patent. Bristol Myers stated that to the best of their knowledge "the said Defendants have not started supplying DASATINIB (API) to various generic companies." (Para 27 of the plaint). Pursuant to a request made to the Drugs Control Department of Karnataka under the Right to Information Act, 2005, the Plaintiffs learnt that Shilpa had applied for and had been granted a manufacturing license by the Drug Controller and Licensing Authority, Karnataka for manufacturing DASATINIB bulk drug. Bristol Myers also alleged that, Shilpa, in its website, had listed DASATINIB in their product list as 'Under Development Oncology Active Pharmaceutical Ingredients.' (Para 30 of the plaint).

5. The plaint alleged with respect to Natco that its conduct in the past, with regard to the invention claimed in the subject patent, Bristol Myers