SWEET VICTORY FOR ROCHE -VALIDITY OF PATENT UPHELD; INFRINGEMENT OF PATENT ESTABLISHED

In another landmark judgement by the Delhi High Court towards expounding and interpreting the Patent law in India in F-Hoffman La Roche vs CIPLA_2015, the Court not only upheld the validity of the suit patent but also ascertained that the patent is being infringed.

The suit patent (IN196774) was granted in February 2007 by the Controller of Patents, covering patent rights over Erlotinib Hydrochloride molecule which demonstrated breakthrough capabilities as an Epidermal Growth Factor Receptor (EGFR) inhibitor which spiked survival benefit in cancer including non-small cell lung cancer (NSCLC) patients.

This decision is in respect of the appeal/cross-appeal filed against the order of the Single Judge, Justice Manmohan Singh of the Delhi High Court. The Division Bench in the appeal reversed the finding of the Single judge and held that as CIPLA’s Erlocip, admittedly one particular polymorphic form of the Erlotinib Hydrochloride compound (Polymorph B) clearly infringes the IN ‘774 patent. Further, the Bench maintained the finding of the Single judge in terms of validity of the patent. The patent is considered to be non-obvious and complaint with section 8 of the Patents Act.

However, keeping in view of the fact that the life of the patent is soon to expire in March, 2016, the Bench did not grant an injunction as prayed for by Roche against CIPLA, keeping in view that there is no interim injunction enforced against CIPLA. Roche has also been awarded cost of Rs. 5 lakhs.

A detailed analysis of the order will follow shortly.

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