2019 years 11 month 18 day, The Delhi High Court is in Merck Sharp & Dohme Corp & Anr (Hereafter referred to as Merck) v Sanjeev Gupta & Ors The defendant was granted a temporary injunction in the case, To prohibit the manufacture and export of the drug sitapliptin. The defendant stated that his manufacture of patented products for export purposes did not constitute patent infringement, But the court rejected his claim.

The fact and the core problem is the patented drug sitapliptin (Indian patent No 209816) It is used to treat type 2 diabetes. Merck is in 102 Several countries hold patents for the drug and its pharmaceutically acceptable salts. found, The defendant adopted "Swizglipt" To manufacture drugs and export them to countries other than India for sale, For any sales in Delhi, India.

Therefore, Plaintiff's claim, Although for export purposes, The defendant also infringed the patentee's rights by making the product "1970 Indian Patent Act, 1996" The first 48 The rights enjoyed by Article.

The patentee is subject to 48 The basis of the rights enjoyed in Article "1970 Indian Patent Act, 1996" Other provisions as well as No 47 The conditions specified in this article, Patents granted under the Act are vested in the patentee:

－If the object of the patent is the product, Ban unlicensed third parties from manufacturing in India, use, Offer for sale, Sell or import the product;

－If the object of the patent is method, Unlicensed third parties are prohibited from using the method in India, use, Offer for sale, Sell or import products obtained directly through this method.

Just look at the content of this article can be found, When a third party manufactures in India without the patentee's consent, use, Offer for sale, The sale or import of a patented method or product affects the rights of the patentee. To this, The defendant countered that: The court is not competent to accept the case, Because the product is not being sold in Delhi. The competent drug authority has granted the defendant the production license, Allowable basis "1940 Drugs and Cosmetics Act, 2000" export. The first 48 The strip does not include manufacturing solely for export purposes. The court's decision The court answered all the arguments.

First of all, The court found that the defendant was a legitimate patentee, Its exclusive rights have been violated. The court ruled that the products were exported through Delhi on the basis of the evidence presented by the plaintiff. and, The product is available in www. indiamart. com Sell on the website, The site is Delhi's online marketplace. Therefore, The court has territorial jurisdiction in the case.

secondly, The defendants did not provide any evidence that the drug authority thoroughly investigated the patent of the contested product before granting the license. In addition, Only on the basis of "1940 Drugs and Cosmetics Act, 2000" The grant of an export manufacturing license does not grant the defendant patent protection.

Finally, The court dismissed the defendant's challenge to No 48 The argument put forward by the article—— "Import for these purposes" For the purposes of these lists (For example, it is used in India, Promise to sell or sell) Imported patented product. The defendant's interpretation does not hold water. Although the manufacturing and sales activities did not take place in India, But it still leads to patent infringement. The protection granted by patents cannot be reduced to include only domestic manufacturing and sales.

At present, The case awaits a final decision from the court. Main information: The Delhi High Court has passed a ruling against No 48 The article is broadly interpreted to reasonably protect the rights of the patentee. The court's decision to restrict a defendant's manufacturing for exporting a patented product provides reassurance to patentees who have been infringed by subjective interpretations of the law.

In addition, The failure of drug authorities to investigate the condition of patented products before granting manufacturing licences has also been challenged by the courts. The court also hinted at the basis "Drugs and Cosmetics Act" The grant of production license and "Patent law" The difference between patented products in. The court said the two laws were separate. The court also indirectly said that patents are more important than manufacturing licenses.

Therefore, The first 48 The article may be construed to mean that the patented product enjoys protection, The other party shall not manufacture for export purposes.

(Compiled from www. lexorbis. com)

Reprinted from China Intellectual Property Network   translation: Rason group　proofread: Wang Dan

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