The Delhi High Court, recently, granted a permanent injunction in favour of Kudos Pharmaceuticals Limited (“Kudos”) restraining Natco Pharma Limited (“Natco”) from manufacturing and selling a generic version of the cancer drug, Olaparib, in light of Kudos’ Indian Patent ‘IN228720’ for a Phthalazinonederivative, particularly Olaparib, a drug used in cancer treatment, which was valid till March 12, 2024.
Kudos alleged that Natco infringed the suit patent by manufacturing and selling a generic version under the brand BRACANAT. Natco, on the other hand, challenged the validity of the patent by way of a revocation petition, pursuant to Kudos’ filing of the suit against it, and in this regard also relied on certain submissions made by Kudos in defending the suit patent in other jurisdictions.
Kudos contented that Natco infringed the suit patent in the 19th year of its life and no pre-grant or post-grant opposition had been filed, till date, challenging the validity of the suit patent. Therefore, the patent was, prima facie, entitled to be treated as valid, strong, liable, and enforceable. Natco argued that the suit patent lacked an inventive step as Olaparib did not demonstrate technical advancement over the prior art.
The court observed that, when dealing with a challenge to the validity of the suit patent on the ground of anticipation by prior claiming, the court has to render a finding on a claim-to-claim comparison. Once it is found, pursuant to such comparison, that there is no anticipation by prior claiming, then a case of invalidity cannot be made out basis statements made in other jurisdictions while defending the patent. Subsequently, the court observed that Natco was indeed exploiting the suit patent by manufacturing and selling Olaparib. The court ruled against Natco, stating that technical advancement over prior art is not necessary for an inventive step to be included in a patent claim.
The court, accordingly, granted a permanent injunction restraining Natco from manufacturing, selling, or dealing with Olaparib under the brand name BRACANAT or any other brand name until the suit patent remains valid, and also dismissed Natco’s revocation petition.
Click here to access the judgement copy: https://shorturl.at/mqMQ9
Kudos Pharmaceuticals Limited & Anr. v. Natco Pharma Limited, [CS(COMM) 29/2023] and Natco Pharma Limited v. Kudos Pharmaceuticals Limited & Anr. [C.O.(COMM.IPD-PAT) 1/2023], [Delhi High Court, judgement dated March 1st, 2024]
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