Point of Law: Intellectual Property right - Infringement of Indian patents - It is also a well settled position in law that damages are entirely insufficient as panacea for holder of a valid patent, which is infringed by another. Intellectual property has its own sanctity. No case for grant of prayer for permitting defendants to release their allegedly infringing CTPR products in market, can be said to exist at this stage.

JUDGMENT :

1. This order disposes of IA 5801/2021 in CS (Comm) 69/2021 and IA 5816/2021 in CS (Comm) 611/2019.

2. Both these suits, instituted by M/s FMC Corporation, allege infringement, by the defendants, of Indian patents IN 201307 (“IN 307”) and IN 213332 (“IN 332”), held by the plaintiff. Of these, IN 307 is a product patent and IN 332 is a process patent. The plaints allege that the defendants are intending to launch Chlorantraniliprole (“CTPR”), which is specifically covered and disclosed in IN 307 and IN 332, held by the plaintiff. The proposed action of commercially manufacturing and launching CTPR would, therefore, according to the plaint, infringe IN 307 and IN 332. The plaint, therefore, prays for a permanent injunction against the defendants from dealing in any product which could infringe IN 307 or using any of the processes claimed under IN 332.

3. The defendants’ case, in opposition to the case set up by the plaintiff, is that CTPR stands covered by IN 204978 (“IN 978”), which is a genus/Markush patent held by the plaintiff. The plaintiff has, in response, contended that, even if CTPR is covered by IN 978, it is not disclosed therein. As against this, the defendants contend, relying on the judgment of the Supreme Court in Novartis AG v. U.O.I., (2013) 6 SCC 1, that coverage in the genus patent is sufficient and that the Supreme Court has specifically disapproved dichotomizing coverage and disclosure.

4. Detailed arguments have already been advanced before me over the course of several hearings, by both parties, on this nuanced issue, regarding the distinction between coverage and disclosure in the genus/Markush patent and whether coverage sans disclosure would be sufficient to invalidate the subsequent specie patent(s), i.e. in the present case, the suit patents IN 307 and IN 332. The defendants question the very validity of the suit patents, IN 307 and IN 332, contending that, once CTPR stood covered by IN 978, no separate patents could be issued specifically claiming CTPR. They contend that a person ordinarily skilled in the art could easily derive CTPR from the moeities disclosed in IN 978, without having to resort to any inventive step in that regard. In view thereof, the very validity of IN 307 and IN 332, according to the defendants, is highly questionable and, by seeking to base their claim on the said patents, the plaintiff is attempting to “evergreen” the Markush patent IN 978, even beyond its tenure.

5. IN 978 expired on 20th March, 2021, and the suit patents IN 307 and IN 332 are due to expire in August, 2022.

6. The basic premise, on which these applications are based, is that, as IN 307 and IN 332 are ab initio invalid patents and as IN 978 has expired, the defendants are now entitled to launch their CTPR product in the market.

7. At the time of issuance of notice in CS(Comm) 611/2019 on 14th November, 2019, the statement of Mr. Sai Deepak, learned counsel for the defendant, was thus recorded:

“2. Mr. J. Sai. Deepak, learned counsel for the defendant states upon instructions that the defendant has applied for regulatory approval for manufacturing and marketing the product, which the plaintiff alleges infringes the suit patent, in September 2019. He states that approval usually takes 6 to 18 months to be processed. Consequently, it is further stated that there is no likelihood of commercial launch of the product prior to March, 2020. Recording the aforesaid statement, it is unnecessary to pass an ad-interim order at this stage. Mr. J. Sai Deepak also states for the record that the defendant has applied to the Intellectual Property Board for revocation of the suit patent IN 201307.”

8. Effectively, therefore, the defendant seeks to resile from its statement as recorded on 14th November, 2019, citing changed circumstances as the justification thereof. Similar relief is sought in IA 5816/2021 in CS (Comm) 611/2019.

9. I have heard, at length, learned senior counsel, Mr. Gopal Subramanium, for the applicant in