JUDGMENT

V. Kameswar Rao, J. - By this order I shall decide this application filed by the plaintiffs under Order XI Rule 2 CPC, as amended by the Commercial Courts Act, 2016 read with Section 151 CPC for discovery by interrogatories filed on behalf of the plaintiffs. The prayer made in the application is the following:

"IN THE PREMISES STATED ABOVE, IT IS THEREFORE, MOST RESPECTFULLY PRAYED THAT, THIS HON'BLE COURT MAY BE PLEASED TO:-

a) Allow the present application be allowed in the interest of justice, thereby directing the Defendant to file its response to the aforementioned interrogatories within the time stipulated by this Hon'ble Court;

b) any further order as this Hon'ble Court may deem fit in the facts and circumstances of the instant case."

2. It is the case of the plaintiffs and submitted by Mr. Lall, learned Senior Counsel appearing for the plaintiffs that the aforesaid suit has been filed by the plaintiffs seeking permanent injunction against the defendant restraining the defendant from violating and infringing the rights of the plaintiffs in its patent being IN 247301 titled as "Process for preparing Amoxicillin Trihydrate".

3. According to Mr. Lall, the plaintiffs have discharged the onus to prove infringement of the suit patent in its plaint by way of test reports. However, the defendant has completely failed to discharge the burden of proof as stipulated in Section 104A (1) (b) of the Patents Act. In substance, the submission of Mr. Lall in support of this application is that the defendant, who has filed written statement had in paragraph 94 disclosed its alleged process for manufacture of Amoxicillin Trihydrate, which according to him, is ambiguous and not suitable for filing with the regulatory authorities.

4. He qualifies his submission by stating that the defendant purposefully and deceitfully adds optionality to key sections of the process that are covered by the suit patent of the plaintiffs. In this regard, he has drawn my attention to paragraph 94 wherein according to him, the defendant has defined "whether or not the "Penicillin G Acylase Enzyme" is Immobilized or non-Immobilized." According to him, any commercially viable manufacturing process for enzymatic amoxicillin must utilize an "Immobilized" enzyme. He stated that the defendant has in fact using immobilized enzyme has deliberately not mentioned it to fall outside the scope of the claims. He qualifies his submission by stating that the defendant depicting in their written statement that after the crude Amoxicillin Trihydrate is separated, "Penicillin G Acylase enzyme is washed with water".

5. According to him, this is an indication that the defendant is actually using enzyme that has been immobilized and are hiding the fact from the Court. That apart, he stated that the "Penicillin G Acylase" enzyme is expensive, inasmuch as it costs approximately 25 USD per KG, which would be higher than the current market price for amoxicillin API which is approximately 22 USD per KG. Therefore, the enzymatic manufacturing process is only commercially viable if the enzyme is immobilized and reused.

6. According to him, by using "/" symbol the defendant is inferring that either a salt of PHPGM, likely PHPGME.HCL or PHPGME may be used interchangeably. He stated that it is unlikely that the defendant used the salt of PHPGME because the salt is more soluble in water and would necessitate the use of a base for pH control in the enzymatic conversion. HPGM free base has a low solubility and therefore has a high yield in isolation. Therefore, the defendant's disclosed process is contradictory and interchanging of a salt of HPGM and the HPGM free base would require two different processes.

7. He vehemently argued that the defendant has stated that an "acid solution is added into crude amoxicillin mixture till clarity is achieved; (the acid used may be Nitric Acid / Sulphuric Acid / Hydrochloric Acid)". According to Mr.Lall, these solvents are not interchangeable in a single pr