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IN THE HIGH COURT OF DELHI
G.P. MITTAL, J.
Symed Laboratories Pvt. Ltd. - Appellant
Versus
Sharon Bio-Medicine Ltd. - Respondent
I.A. No. 3159 of 2014 in CS (OS) No. 1797 of 2012
Decided On : 10-09-2014
CPC - Amendment of Written Statement - 1908 (Order VI Rule 17) - [CPC] - [Order VI Rule 17] - The court allowed the amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908, except for the withdrawal of the admission made by Defendant no. 3 regarding the use of the product Linezolid, which was purchased from the market including Defendant no. 1, as a constituent in its final product. The court permitted Defendant no. 3 to state that its manufacturers must have used the product either as an intermediary or a constituent of the final product by purchasing the same from the market including Defendant no. 1 and the Plaintiff.
Fact of the Case:
The Plaintiff filed a suit for permanent injunction restraining infringement of rights in Patents no. 213062 and 213063 titled 'Novel Intermediates for Linezolid and Related Compounds' and 'A Novel Process for the Preparation of Linezolid and Related Compounds' and for damages/ rendition of accounts. The Plaintiff alleged that the Defendants were guilty of infringing the process of patents of the Plaintiff by procuring Linezolid from Defendant no.1, which was manufactured by using the patented process of the Plaintiff.
Finding of the Court:
The court allowed the amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908, except for the withdrawal of the admission made by Defendant no. 3 regarding the use of the product Linezolid, which was purchased from the market including Defendant no. 1, as a constituent in its final product. The court permitted Defendant no. 3 to state that its manufacturers must have used the product either as an intermediary or a constituent of the final product by purchasing the same from the market including Defendant no. 1 and the Plaintiff.
Issues: The main issue was whether Defendant no. 3 should be allowed to amend the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908, and whether the admission made by Defendant no. 3 regarding the use of the product Linezolid could be withdrawn.
Ratio Decidendi: The court held that an admission cannot be permitted to be withdrawn by a party to the lis. However, the court allowed the amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908, except for the withdrawal of the admission made by Defendant no. 3 regarding the use of the product Linezolid, which was purchased from the market including Defendant no. 1, as a constituent in its final product.
Final Decision: The court partly allowed the application under Order VI Rule 17 CPC by permitting the amendment sought, except for the withdrawal of the admission made by Defendant no. 3 regarding the use of the product Linezolid, which was purchased from the market including Defendant no. 1, as a constituent in its final product. The court permitted Defendant no. 3 to state that its manufacturers must have used the product either as an intermediary or a constituent of the final product by purchasing the same from the market including Defendant no. 1 and the Plaintiff.
JUDGMENT :
G.P. Mittal, J.
This application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) has been moved by Defendant no. 3 (Mankind Pharma Limited) for amendment of the written statement.
2. A suit for permanent injunction restraining infringement of rights in Patents no. 213062 and 213063 titled 'Novel Intermediates for Linezolid and Related Compounds' and 'A Novel Process for the Preparation of Linezolid and Related Compounds' along with damages/ rendition of accounts, etc. was instituted by the Plaintiff against the Defendants with the allegations that the Plaintiff company is a well-known name in respect of manufacture and marketing of high profile Active Pharmaceutical Ingredients. It is the case of the Plaintiff that Linezolid is a synthetic antibiotic used for the treatment of serious infections caused by gram-positive bacteria that are resistant to several other antibiotics. Linezolid is a member of the oxazolidinone class of drugs and has the chemical name N - [ [ (5S) - 3 - [3 - fluoro - 4 - (4 - morpholinyl) phenyl] - 2 - oxo - 5 - oxazolidinyl] methyl] acetamide. Linezolid is marketed by Pfizer under the tradenames Zyvox (in the United States, United Kingdom, Australia and several other countries), Zyvoxid (in Europe) and Zyvoxam (in Canada and Mexico). Linezolid is protected by various patents in all major countries worldwide, for example by US Pat no. 5,688,792 (Expiry date: May 18, 2015) in the United States and by EP Patent no. 0717738B1 in the European Convention by Pfizer. However, as Linezolid is a pre - 1995 drug, thus, there does not exist a corresponding product patent qua Linezolid in India.
3. According to the Plaintiff, the Plaintiff developed two novel and inventive processes for preparation and commercial production of Linezolid. The Plaintiff, therefore, moved two applications bearing nos. 1592/ CHENP/ 2004 and 797/ CHENP/ 2004 in the patents office. The Plaintiff company was granted two different patents being IN 213062 and IN 213063 respectively. Details of the said patents as stated in para 12 of the plaint are extracted hereunder :
| Application number | 1592/CHENP/2004 (PCT/IN2004/000218) | 797/CHENP/2014 (PCT/IN2004/000105) |
| Title | ‘Novel intermediates for Linezolid and related compounds’ | ‘A novel process for the preparation of Linezolid and related compounds’ |
| Filing date | 20.7.2004 | 19.4.2004 |
| 11A publication | 29.4.2005 | 29.4.2005 |
| Date of grant | 19.12.2007 | 19.12.2007 |
| Patent number | IN 213062 | IN 213063 |
4. It is averred in the plaint that the various patents/ applications in respect of processes for preparation of Linezolid including those of the innovator, Pfizer suffered from various shortcomings and disadvantages which have been overcome by the Plaintiff by the processes patented above.
5. The Plaintiff states that the Plaintiff's rights in two patents are extremely valuable as the Plaintiff has spent large amount of money and time in inventing the process. It is averred that Defendants no. 2 and 3 are some of the customers of Defendant no. 1. It is further stated that Defendant no. 1 is involved in manufacturing of Active Pharmaceutical Ingredients for supply to its customers in domestic and international market. According to the Plaintiff, Defendants no. 2 and 3 are procuring Linezolid from Defendant no.1 which is manufactured by using the patented process of the Plaintiff. Thus, all the three Defendants are guilty of infringing the process of patents of the Plaintiff.
6. By an ex parte ad interim injunction order dated 01.06.2012, the Defendants through their directors, servants, agents, employees, franchisees and representatives or any one acting on their behalf were restrained from manufacturing the product Linezolid in any manner so as to result in infringement of the Plaintiff's registered patent IN213063.
7. By virtue of this appl
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