PRADEEP NANDRAJOG & MUKTA GUPTA, JJ.

1. Though at first blush the plot and premise of the Roche vs. Cipla dispute appears to be straightforward - Roche claims that on March 31, 1991, it filed an application for grant of patent in USA pertaining to Erlotinib Hydrochloride, resulting in grant of patent US 498 on August 05, 1998. During pendency of its application in USA, on March 13, 1996 it filed an application in India for grant of patent for the same molecule which was granted to it vide in 774 on February 23, 2007. The marketable physical form of the molecule comprised polymorph A and B. Further research revealed that polymorph B was more thermodynamic and as per Roche would qualify for enhanced efficacy and thus on November 09, 2000 it applied for grant of patent for polymorph B of Erlotinib Hydrochloride in USA resulting in grant of patent US 221. Similar application filed in India on February 06, 2002 i.e. Del 507 was rejected. As per Roche, in 774 granted in February 2007 by the Controller of Patents, per Claim No. 1, covered patent rights over Erlotinib Hydrochlo