ELI LILLY AND COMPANY & ORS. v. BRYAN PHARMACEUTICALS & ORS.

1. The plaintiff is the owner of Indian Patent, IN 270765, in respect of the compound, “Baricitinib”, which is marketed in India, under the brand name/trademark, Olumiant®, a trademark of which Plaintiff No. 1 is the registered proprietor. I.A. 14819/2021 (under Section 151 of the CPC, 1908)

2. Plaintiffs 1 and 2 were granted, on 3rd May, 2021, ‘Emergency Use Approval’ (EUA) for use of “Baricitinib” in its combination with Remdesivir, for treatment of COVID-2019. Following such grant, the plaintiff entered into eight royalty-free voluntary license agreements 2021:DHC:3611 with various Indian pharmaceutical companies, permitting the companies to distribute Baricitinib, under their individual trademark/ brand names, solely for the purpose of treatment of COVID-2019 and for no other purpose.

3. The plaint complaints that Defendants 1 to 19, were marketing and advertising for sale, “Barinat”, the brand name under which Defendant No. 21, i.e.M/s Natco Pharma Ltd., was manufacturing and marketing “Baricitinib”as a treatment for rheumatoid arthritis. This, it was contended, was a breach of the agreement between the plaintiff and Defendant 21, which permitted use of “Barinat”, only for treatment of COVID-2019.

4. The present application has been moved by Defendant No. 11, Bull Pharmachem. The applicant submits that the marketing/display of “BARINAT”, as a treatment for rheumatoid arthritis, by the applicant, was an inadvertent error of the marketing team and that the applicant had no intention of selling “Barinat”, as a treatment for rheumatoid arthritis or for which it was not produced.

5. Despite the advertisement, it is further stated in the application, that Defendant No. 11 has not, in fact, sold “Barinat”, as a treatment for rheumatoid arthritis.

6. Ms. Rajeshwari, learned Counsel for Defendant 11/applicant, undertakes on behalf of her client, that the applicant would not market or sell “Barinat”, as treatment for any ailment other than COVID- 2019.She also undertakes that her client would not export “Barinat” tablets.

7. In view thereof, Mr. Pravin Anand, learned Counsel for the plaintiff, agrees that, qua Defendant No. 11, no cause of action survives.

8. In view of the averments contained in the present application, and the submissions of Ms. Rajeshwari, no cause of action survives against Defendant No. 11. Defendant No. 11 shall be bound by the averments in this application, as well as statement made by learned Counsel at the Bar.

9. In view thereof, the present suit is disposed of qua Defendant No. 11, who shall not continue to be treated as in the array of parties.

C.HARI SHANKAR, J NOVEMBER 15, 2021 ss