Thursday, January 29, 2015

Injunctions in India

1.  SpicyIP has had some interesting posts recently on injunctions in India.  In December, 2014, Thomas J. Vallianeth published two posts (here and here) on a contractual dispute between Micromax and OnePlus, in which Judge Nandrajog of the High Court of Delhi (link here) expressed a strong disinclination for "ad interim" injunctions--by which I take the judge to be referring to something similar to what in the U.S. would be referred to as a temporary restraining order, see paras. 16(ii), 31 (though in this particular case the defendant was present at the initial hearing):
An ad-interim injunction is normally issued when a very strong prima-facie case is made out by the plaintiff and the injury to the plaintiff is writ large if the defendant is not restrained from doing the activity which causes the injury to the plaintiff. In such a case the balance of convenience would obviously be in favour of the plaintiff. Since interim injunctions affect the right of a defendant, the principle of natural justice would warrant the defendant to be heard before an order adverse to the defendant’s right is passed. A delicate balance has to be struck between the right of the plaintiff and the right of the defendant at the stage of granting an ad-interim injunction. Only if a Court were to find that so grave and so irreparable is the injury that even a day’s delay cannot be brooked, and so strong is the prima facie case made out, only then would a Court be justified in granting an ad-interim injunction and thereafter proceeding to consider whether to confirm the same or not after hearing the defendant. It would be a situation akin to a post decisional hearing.
2.  More recently, on January 9 Judge Manmohan Singh of the Delhi High Court entered a preliminary injunction in favor of Novartis and against Cipla with regard to the latter's plans to market the drug Indacaterol.  Citing the U.S. decision in eBay and the Indian decision in Hoffman-La Roche, the court held that the public interest is a factor to be considered in deciding whether or not to grant an injunction.  Nevertheless, on balance, the court denied the injunction, partly because the evidence thus far would not have enabled the court to calculate an appropriate royalty, and partly because (if it wishes to do so) the defendant has the option of trying to obtain a compulsory license under sections 83 and 84 of the Indian Patent Act from the appropriate tribunal.  The text of the opinion is available here, and there are discussions of it by Madhulika Vishwanathan on SpicyIP and by Madhur Singh in Bloomberg BNA's World Intellectual Property Report (available here, behind a paywall).  

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