Injunctions in Indian Pharmaceutical Patent Infringement Actions: Some Observations

Sandeep K. Rathod, Mylan Laboratories Limited| March 31, 2016

Abstract:
India’s most recent tryst with pharmaceutical product patents is eleven years old. These years have seen a number of pharmaceutical patent infringement actions/suits brought on by patentees, though many of these litigations are pending final judgment as they have not yet completed trial due to various factors. The focus of the pharmaceutical patent owners/ holders (patentees) in the initial stage is clearly to secure an immediate, interim injunction against the defendants. The present article focuses only on this initial stage – i.e. the practice of interim injunctions within the domain of pharmaceutical patent infringement suits – and based on the author’s experience and review of the information available in public domain for these litigations, makes the following observations:

a) Obtaining an order of interim injunction in a pharmaceutical patent suit is not difficult for the patent owner. Indian Courts have in fact, granted interim injunctions in a majority of pharmaceutical patent infringement suits;

b) A large majority of injunction requests are filed by the patentees as ex-parte and are quia-timet in nature. The defendant may not get an adequate opportunity to present its defense before the grant of such injunctions;

c) While arguably, patent infringement suits can be filed in a host of District and High Courts, it would appear that patent owners prefer to initiate their suits and corresponding injunction requests only before the High Court of Delhi;

d) Undertakings for non-commercialisation given by generic companies also act/stand on same footing as injunctions; and

e) India will see more pharmaceutical patent infringement suits- including cases where IP owning generic companies file suits against other generic companies.

 

Keywords: India, patents, injunctions, ex-parte, pharmaceuticals, generics, forum-shopping, infringement, litigation, innovator

To read full paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2758327

 

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