The main legal point established in the judgment is the application of patent law, specifically Section 48 of the Patents Act, 1970, and the entitlement to a summary judgment under Order XIII-A of the Commercial Courts Act.

MANMOHAN, J:

I.A. 12201/2017

1. Present application has been filed under Order VIII Rule 10

2. It is pertinent to mention that the present suit has been filed for read with Section 151 CPC. permanent injunction, infringement of registered Patent No.209816, damages, rendition of accounts and delivery up etc. The prayer clause in the present suit is reproduced hereinbelow:-

“a. A decree of permanent injunction restraining the Defendants, its directors, employees, officers, servants, agents and all others acting for and on their behalf from making, using, selling, distributing, advertising, exporting, offering for sale, and in any other manner, directly or indirectly, dealing in any product that infringes the claimed subject matter of the Plaintiff’s Indian Patent No.209816 or any of the claims thereof, including Sitagliptin or any of its pharmaceutically acceptable salts such as Sitagliptin Phosphate Monohydrate, including the infringing Sitagliptin drug products under the brand GLIPSITM;

b. An order for damages in favour of the Plaintiffs and against the Defendants as stated hereinabove;

c. An order requiring the Defendants to render accounts of all sums earned by the Defendants through their unlawful and infringing activities referred to in this plaint and a decree for the same in favour of the Plaintiffs and against the Defendants.

d. An order for delivery up of all the infringing products, if any;

e. An order for costs in the proceedings; and

f. Any orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

3. At the outset, learned counsel for plaintiffs gives up prayers (b), (c) and (d) of the prayer clause to the suit. The statement made by learned counsel for plaintiffs is accepted by this Court and plaintiffs are held bound by the same.

4. On 14th September, 2015, this Court granted an ex parte ad interim injunction in favour of the plaintiffs and against the defendants. The relevant portion of the said order is reproduced hereinbelow:-

“5. In view of the arguments urged on behalf of the plaintiffs, the defendants are restrained, till further orders, unless varied by the Court, from in any manner using the molecule which is the subject matter of plaintiffs’ Indian Patent no.209816 with the clarification that the defendants can manufacture a drug provided it does not infringe the Indian Patent no.209816 of the plaintiffs or the defendants have statutory or other licence to use the Indian Patent of the plaintiffs.”

5. Since the defendants did not enter appearance despite service, they were proceeded ex parte vide order dated 31st August, 2017 and the ex parte injunction order was confirmed.

6. The contentions and submissions advanced by learned counsel for the plaintiffs are as under:-

i. The plaintiff No.1 along with its various subsidiaries is amongst the world's leading Pharmaceutical companies and is dedicated to discovering, developing and providing innovative pharmaceutical products that prevent and cure diseases and address evolving medical needs of patients and society worldwide. Plaintiff No.2 is the licensee of plaintiff No.1.

ii. The plaintiff No.1 is the registered proprietor of Indian Patent No.209816 which has been given the International Non-Proprietary name SITAGLIPTIN. The said molecule is commercially sold by the plaintiffs in India extensively under the brand/commercial name JANUVIA.

iii. The plaintiff No.1 manufactures another product which is a combination of SITAGLIPTIN and another drug known as METFORMIN HCI which falls under the protection afforded to Indian Patent No.209816 and the said combination is sold by plaintiff No.1 under the brand/commercial name JANUMET.

iv. The defendant No.1 who is the proprietor of defendant No.2 is planning to launch a generic version of SITAGLIPTIN, which is the subject matter protected under the Indian Patent No.209816, under the brand name GLIPSIT-M1.

v. The defendants have yet not commercially launched the infringing product GLIPSIT-