Full Text
HIGH COURT OF DELHI
Date of Decision: 7th October, 2022
BASF SE ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Shrawan Chopra, Mr. Vibhav Mithal, Mr. Achyut Tewari, Advocates
(M:8604633567)
Through: Mr. Avinash K. Sharma, Advocate.
(M:8130459281)
JUDGMENT
1. This hearing has been done through hybrid mode. I.A. 13908/2022(for exemption)
2. This is an application on behalf of the Defendant seeking exemption from filing duly notarised and attested affidavits. Binding the deponent of the affidavit to the contents of the application, the exemption is granted. Let the notarised affidavit be filed within four weeks.
3. I.A. 13908/2022 is disposed of. I.A. 13907/2022(for delay)
4. This is an application on behalf of the Defendant for condonation of delay in filing the written statement. The delay is condoned.
5. I.A. 13907/2022 is disposed of. CS(COMM) 271/2022 & I.A. 6501/2022(for stay)
6. The Plaintiff- BASF SE, a German company, has filed the present suit against the Defendant- ‘GSP Crop Science Private Limited’, seeking 2022:DHC:4117 enforcement of Patent IN 271338 titled ‘Crystalline Complexes of Agriculturally Active Organic Compounds’ (hereinafter ‘suit patent’). The invention claimed in the suit patent is stated to be commercialised and sold by the Plaintiff under the mark ‘XELORA’ which is useful in combating plant diseases caused by harmful fungi. According to the Plaintiff the said patent covers ‘450 g/l of Thiophanate Methyl and 50 g/l of Pyraclostrobin FS’ which is also the active compound in the Plaintiff’s product.
7. The Plaintiff’s grievance in the present suit is that the Defendant had obtained registration for a combination of ‘Thiophante Methly 450 g/l + Pyraclostrobin 50 g/l (w/v) FS’ under Section 9(4) of the Insecticides Act, 1968 (hereinafter ‘Act’) as a follow-on product to ‘XELORA’ which has already been granted registration under Section 9(3) of the Act. The case of the Plaintiff is that the suit patent covers a new co-crystalline form containing ‘Thiophanate Methyl 450 g/l + Pyroclostrobin 50 g/l(w/v) FS' and is used for combating multitude of fungi on cultivated plants.
8. The submission of Mr. Anand, ld. counsel appearing for the Plaintiff is that the crystalline complex is a supra crystal or a co-crystal, which has properties that are fundamentally different from the molecule which was known. It is further submitted that the crystalline complex is identified by Xray diffraction parameters, as set out in the claim.
9. The Plaintiff had acquired knowledge of the Defendant’s approval and had, accordingly, filed the present suit seeking an interim injunction against the Defendant. The suit itself was quia timet in nature as the Defendant had not commercially manufactured or launched the product. As per the plaint, on the basis of the registration granted by the Registration Committee under the Insecticides Act, 1968, the Plaintiff had apprehended that the Defendant would begin promotion and also plan to commercially launch the product. On 28th April, 2022, ld. Counsel for the Defendant had submitted as under:
10. Since then, the written statement has been filed in which the Defendant has taken the plea that it has not launched the product. In addition, the Defendant has also filed an affidavit dated 20th July, 2022 of Mr. Manish Garg, who is the authorized representative of the Defendant. As per the said affidavit, the Defendant has given the following undertaking/assurances:
11. It is submitted by ld. Counsel for the Defendant that the suit can be decreed in terms of paragraph 4(a) to 4(c) of the said undertaking, however, it is submitted that if there is any finding on invalidity in respect of suit patent, the Defendant would not be bound by the undertaking given in paragraph 4(a) to 4(c) as extracted above.
12. Considering the stand taken by the parties, the suit is decreed in terms of paragraph 4(a) to 4(c) of the affidavit of Mr. Manish Garg dated 20th July, 2022 which is on record. The Plaintiff does not press for relief of damages.
13. In case, the suit patent is declared invalid prior to its expiry, before taking any steps for commercial launch the Defendant shall intimate the Plaintiff and give 4 weeks notice before the commercial launch to the Plaintiff.
14. The suit is decreed in the above terms. Let the decree sheet be drawn accordingly.
15. The suit and all pending applications are disposed of.
16. 50% of the court fee is directed to be refunded to the Plaintiff through counsel by the Registry.
PRATHIBA M. SINGH JUDGE OCTOBER 7, 2022 dj/sk