War of the era

The recent litigation in the area of Patent has once again nudged Bayer, the pharmaceutical giant against Ajanta Pharma. Bayer produces a medicine which cures erectile dysfunction. Very recently the plaintiff was awakened by the fact that the defendant has already started marketing and manufacturing Valif, a similar drug as that of the Vardenfil.

The plaintiff has already tried to market the product through licensing agreement by Glaxosmithkilne, but it could not obtain the market and Glaxosmith sold back the marketing rights to Bayer. The suit patent claims the compound, its derivatives, and pharmaceutical compositions containing them from a priority date of 12 November 1997. The patent was granted to Bayer Healthcare AG, which assigned it to Bayer’s IP holding company in 2013. Bayer has filed Form 27 to disclose the working of the patent, as mandated by Section 146 of the Patents Act for years 2013, 2014, 2015, and 2016. Bayer has also admitted that the patented invention has not been worked commercially in India because it is evaluating the market for the product. But the non-working of the patent cannot be a ground for infringement.

The plaintiff also obtained an ex-parte injunction order against Vipro Lifesciences and along with it is suing other six companies for infringing its Vardenfil patent. The case resulted in ad interim injunction against Ajanta. The defendant took the shield of section 48 of the Patent Act the non-working of patents does not entitle a person to obtain injunction order.