The Delhi High Court in a patent infringement suit between GSP Crop Sci. Pvt. Ltd. vs BR Agrotech Ltd [CS(COMM) 82/2023] involving insecticide Pyriproxyfen-Diafenthiuron agrochemical formulation of Patent (IN 394568), exercised its powers under Order XII Rule 6 of the Code of Civil Procedure (CPC) to pass a judgment on admissions of fact. Though taking a lenient view, Defendant No. 2 was directed by the Court to pay a cumulative sum of INR 50,00,000/- (Rupees Fifty Lacs only) as damages. The Court also imposed a special cost of INR 2,00,000/- (Rupees Two Lacs only) on Defendant No. 2, payable to the Delhi High Court Bar Association Lawyers Social Security and Welfare Fund, due to the factual matrix involved in this case.
Applicability of Rule 6 of Order XII in Infringement
Rule 6 of Order XII is a complex rule which allows a court to pass a judgment on admissions of fact. For patent infringement, this means that if a defendant admits to using a patented process or product, the Court can decide the case based on those admissions alone without further trial. In this case, from the admissions of Defendant No. 2 vide statements made in its affidavits dated May 2, 2023 and April 13, 2023, according to the Court, it was plain, clear, unequivocal and unambiguous that Defendant No. 2 was indeed 'offering for sale/selling' the impugned product covered by the claims of IN'568 of the plaintiff during the subsistence of IN'568, without the 'consent' of the plaintiff.
The Court held Defendant No. 2 guilty of having engaged in infringement of the patent of the plaintiff. Additionally, the Court observed that "since these findings are based on 'admissions of fact' made by the defendant no. 2 in pleadings as noted hereinabove, this Court is inclined to proceed with passing a judgment in favour of the plaintiff and against the defendant no. 2 under Order XII rule 6 of the CPC."
GSP's Case
The plaintiff (GSP) argued that IN'568 was valid and had survived seven pre-grant oppositions and two writ petitions. The plaintiff argued that BR Agrotech is a marketer of Roxyfin that directly infringed the patent claims, as evidenced by BR Agrotech's Section 9(4) registration mirroring GSP's approved product. GSP pointed out that Defendant No. 2's admissions in affidavits dated April 13, 2023 and May 2, 2023, acknowledged purchasing and selling Roxyfin, providing sales figures (INR 2,20,23,600 for 2021-2022 and INR 2,24,82,000 for 2022-2023).
GSP contended that these were plain admissions under Order XII Rule 6 CPC, entitling it to judgment without trial, citing precedents like Uttam Singh Duggal & Co. Ltd. vs United Bank of India [(2000) 7 SCC 120], and Delhi Jal Board vs Surendra P. Malik [2003 SCC OnLine Del 292]. The plaintiff asserted the Court to exercise its power to decree on unambiguous admissions. GSP further submitted that liability under Section 48 of the Patents Act extended not only to manufacturers but also to sellers, rendering Defendant No. 2's defences inconsequential.
Defendant's Case
BR Agrotech (Defendant No. 2) argued that it was merely an honest marketer without collusion in infringement, as it held the manufacturing license under Section 9(4) of the Insecticides Act, 1968. He further contended that the suit was not maintainable against its post-settlement with BR Agrotech and that its statements were contextual admissions of past sales, not unequivocal or intentional infringement. Defendant No. 2 claimed that the admissions were conditional, denying future intent to infringe and asserting that denials in its written statement were strong reasons to warrant a trial. According to the defendant, the GSP's application was mala fide, as it is aimed at pressuring the withdrawal of its post-grant opposition against the IN'568 patent.
Further, Defendant No. 2 argued that since the earlier suit already stands decreed against Defendant No. 1. The terms of settlement between the plaintiff and the Defendant No.1 include full and final reimbursement of all sale proceeds including on behalf of the Defendant No. 2, no cause of action survives against the Defendant No. 2, and the plaintiff cannot claim any compensation from the Defendant No. 2.
Issue Before the Court
The short issues for consideration before the court were:
- Whether in view of the provisions of Section 48 of the Act, the Defendant No. 2, admittedly, being the marketer/ seller for the impugned products manufactured by the Defendant No.1, was in fact engaged in "... ... making, using, offering for sale, selling or importing for those purposes that product in India" without the "consent" of the plaintiff, being the registered proprietor of IN'568, has "... ...the exclusive right to prevent third parties... ..." like the defendant no.2 herein; and
- Whether in light of the said "admissions of fact" made by the Defendant No. 2 herein "through pleadings or otherwise ... ...in writing", the plaintiff is entitled to a judgment on admission under Order XII rule 6 of the CPC.
On the Applicability of Order XII Rule 6 CPC
For deciding on the applicability of Order XII Rule 6 CPC in this case, the Court relied on the previous judgments, notably Uttam Singh Duggal & Co. Ltd. vs United Bank of India, Delhi Jal Board vs Surendra P. Malik and National Textile Corpn. Ltd. vs Ashval Vaderaa [2010 SCC OnLine Del] and ruled that this Court had the power to decree on unambiguous admissions. The Court invoked precedents like Uttam Singh Duggal & Co. Ltd. vs United Bank of India to decree the suit, preventing misuse of the judicial process.
On Interpretation of Section 48
Interpreting various aspects of the provisions of Section 48, the Court categorically stated that they "are very clear and unambiguous insofar as it gives to a patentee '... ... the exclusive right to prevent third parties ... ... from the act of making, using, offering for sale, selling or importing ... ...', i.e. anyone dealing with any of the aforesaid is also liable for infringing the patent."[Emphasis added]. Relying on Merck Sharp & Dohme Corp. vs Sanjeev Gupta, the Court held sellers liable for infringement. Additionally, qua the aspect of infringement of patent, the Court observed that "The legislature, in all its wisdom, has chosen to use the word 'or', and not 'and', which simpliciter means that any of the acts like 'making', 'using', 'offering for sale', 'selling', 'importing' in Section 48 of the Act."
The Court analysed Section 48 of the Patents Act, emphasising that it prohibits third parties from "making, using, offering for sale, selling or importing" patented products, using "or" to cover independent acts like selling, without requiring manufacturing or collusion. According to the court, anyone dealing with any of the aforesaid is also liable for infringing the patent." The Court found Defendant No. 2's defence as untenable, as admissions were unambiguous and not conditional, and post-grant opposition did not absolve infringement liability.
Subject Invention
IN'568 discloses and claims a synergistic suspo-emulsion formulation of two agrochemical ingredients, Pyriproxyfen and Diafenthiuron, either in their free base forms, or as agrochemically acceptable salts with Poly Aryl Phenol or Octyl Phenol Ethoxylates, and Magnesium Aluminium Silicate and Acrylic polymer, respectively. IN'568 also discloses and claims a process for the preparation of the aforesaid suspo-emulsion formulations.
Court's Observations and Analysis
The Court found that patent IN'568 validly claimed a suspension-emulsion of Pyriproxyfen (1-15%) and Diafenthiuron (25-55%), commercialised as SLR 525, and that Roxyfin matched this composition exactly, as confirmed by claim mapping required for proving infringement. The Court observed that Defendant No. 2's affidavits explicitly admitted marketing and selling Roxyfin with detailed sales data, constituting clear admissions under Order XII Rule 6 CPC. Therefore, the court observed that "in light of the admissions made by defendant no.2, along with the inescapable liability under Section 48 of the Act, there can be no semblance for the defendant no.2 to lead any plausible defence at the stage of trial or succeeding in the present suit. Hence, the present is a fit case for passing a judgement and decree on admission under Order XII rule 6 of the CPC."
Lesson Learnt
It is worth noting that, in the context of patent infringement, Rule 6 of the Code of Civil Procedure (CPC) generally does not apply directly. Rule 6 CPC is normally not specific to patent infringement. It may also be noted that all the patent infringement matters are governed by the Patents Act, 1970, and the CPC is used to the extent it is applicable. However, in GSP patent infringement cases, this rule was relevant as multiple parties were involved in the infringing activity (e.g., manufacturer, marketers, seller).
In view of the admission of the defendant, the Court ruled that Rule 6 CPC might be relevant in some procedural aspects of a patent infringement suit, as in this case. The court allowed GSP's application, decreeing the suit against Defendant No. 2 with a permanent injunction and awarding damages and reiterating that sellers can be liable for infringement even if they are not the manufacturers. In conclusion, while Rule 6 CPC might be relevant in some procedural aspects of a patent infringement suit, the core issues of infringement are determined by the Patents Act, 1970, and related legal principles.
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