INTRODUCTION
The availability of appropriate reliefs in cases of patent infringement is the key for ensuring the global patent protectionist regime. Patent act 1970 (hereinafter referred to as 'act') provides a legal framework for the functioning of patent system in India. Section 108 of the act provides for reliefs that a court may grant in the suits of patent infringement. Basically it provides two kinds of remedies: one is the grant of injunction against the patent infringer and second is the appropriate damages that the patentee has suffered from the infringement of his patent. Both of these remedies are granted after the actual determination of infringement. This kind of situation, many a times, poses a difficulty for the patent holder to retain and hold damages, arising out of infringement, till the actual guilt is proven. Therefore, the patentee generally pleads for an interim injunction as a temporary and immediate remedy. The act, primarily, is silent about the interim injunction but the liberal interpretation of section 108, as done by courts several times, permits the grant of interim injunction. Moreover, Article 50 of Trade Related Aspects of intellectual property rights (TRIPS) agreement, to which India is a signatory, provides the power to judicial systems to grant temporary injunction.
Order 39- Rule 1&2of Code of Civil Procedure 1908, Section 151 of code of civil procedure and Section 37 of Special relief act 1963 provide general provisions for the grant of interim injunction. Courts heavily rely upon these provision for the grant of temporary relief.
The jurisprudence around interim injunction in IPR has gone through a lot of phases in the last three decades. Therefore, understanding these phases become important for comprehending the concept of interim injunction in its holistic sense.
THE SIX YEAR RULE
It was a well-established principle that an interim injunction cannot be granted if the validity of patent is itself in question. The courts used to follow the six-year rule, which says that patents cannot be presumed to be valid if they are less than six-year-old. This conception of six-year was originally developed in English courts and subsequently crept in the Indian jurisprudence with the case of "V. Manicka Thevar v Star Plough Works" in 1965. Madras High Court, in this case, heavily replied upon the English judgements and held the six-year rule to be of prime importance for determining the validity of patent.
This was the position of law with regard to interim injunction until early 80's when it started to lose its significance. The well-established six-year rule started to fade away with the enactment of the act of 1970. Section 13(4) provides that mere grant of the patent is not a sufficient ground for validity of patent. Courts started considering it to be a pertinent point against the presumption of validity of patent on the basis of six-year rule. Thereafter, the prominence of this rule started decreasing with increasing rate and finally, it was served with major blows in cases like "Mariappan v A.R. Safiullah 2008" and "F. Hoffmann La-Roche v Cipla 2008". Courts held that the six-year rule faces a lot of challenges and cannot be hold consistent with the contemporary world of IPR, where the technology keeps changing and the patents remain significant only for a limited time period.
The six-year rule was heavily criticised in the latter cases and this trend has now emancipated the jurisprudence of interim injunction from the quantitative criterion for determining the validity of patent.
THE ESSENTIALS FOR INTERIM INJUNCTION
There are three essential elements that courts have time and again referred in order to avail an interim injunction.
- Establishment of Prima Facie case
- Balance of convenience in favour
- Irreparable damages
The Apex court of India have categorically laid down the guidelines which need to be followed for availing interim injunction. The three mentioned above are the heart and soul of the conditions that the courts have referred almost in every case concerning with interim injunction. The first condition requires the plaintiff to establish that there is a prima facie case of infringement of patent in his/her favour. The second requirement is to establish that the loss suffered by the plaintiff would be more in comparison to allegedly infringing party. And the third requirement is to produce evidences for establishing the irreparable damages, in case the interim injunction is not granted.
MAJOR SHIFT IN PERSPECTIVE AND IMMEDIATE RETREAT
In a 2019 decision in "Sterlite Technologies Ltd. v ZTT India Ltd.", Single Judge bench of Delhi High Court has decided the case with a completely different perspective. It has deviated from the general three rule principle and has granted the interim injunction even in absence of a prima facie case. It means that this judgement is a deviation from the catena of previous judgements which upheld the three rule requirement. SJ here call it to be 'a need of the hour' and observed that:
"the life of a patent is limited and further considering the time taken in determination, whether there is infringement of patent, non-grant of interim injunction often results in, the defendant, even if ultimately found to have infringed the patent, till the said determination, continuing to reap fruits of infringement."
However, this view was not appreciated by the Divisional Judge bench of Delhi High Court in "Natco Pharma Ltd. v Bayer Healthcare Llc" and "Natco Pharma Ltd. v Bristor Myers Squibb Holdings". Judges opined to decide the grant on the basis of merit. Granting of interim injunction cannot be made a general rule because the grant can be sought for malicious purposes too. With these views, the position was restored back to the three rule principle for seeking the interim injunction.
CONCLUSION
Indian Jurisprudence has taken a lot of roller-coaster rides, when it comes to the aspect of interim injunction in IPR. However, the present situation is arguably a stable one. The three rule principle is well accepted. But still, this concept is not a linear one; there are some fields, for example medicine, where a lot of other factors such as public interest etc. come into play while determining the grant of interim injunction.
This aspect of IPR is still developing, accommodating and undoubtedly gaining more attention than ever before.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
