2002 PLP 120 (CLD)

(f) Whether party approaching the Court for injunction has suppressed material facts and acted in a mala fide manner? If answer to any of these queries is in affirmative, the relief of injunction being discretionary in nature can be declined having regard to the facts of each case. In the present case the plaintiffs Messrs Pfizer Limited are seeking protection of their rights arising out of their Patent No.130621, which is in respect of "process for preparing Besylate salt of Amlodipine and pharmaceutical composition thereof". In Pakistan the plaintiffs had applied in, the 'patent office for this purpose in the year 1986 and it was sealed in their favour in the year 1989. To justify their case for interim relief and to strengthen their contention that their patented rights are being violated and infringed at the hands of the defendants in the two suits: The plaintiffs alongwith their plaint filed duly attested affidavits of the following persons: (a) Elias J. Corey, Professor of Organic Chemistry at Harvard University, Cambridge. Massachusetts since 1959 who has also won various awards including the Noble Prize in Chemistry in the year 1990. (b) Thomas C. Crawford, the holder of degree in Doctor of Philosophy and in Organic Chemistry from the University of California at Los Angeles. Presently working as Group Director, Process Research and Development Department, in the plaintiffs' company. These two experts in their field, on the basis of their knowledge and experience and for the reasons stated in their respective affidavits have supported the plea of the plaintiffs' company Messrs Pfizer Limited that at the hands of defendants pharmaceutical companies, their patented rights are being violated. Had this been the admitted or undisputed position of the record it would have been much easier for the Court to conclude that prima facie case exists in favour of the plaintiffs, but in the instant case the defendants, who are hotly contesting and disputing this position for the reason put forth by their counsel in his argument, as recorded above, have also placed on record, besides other documents, the affidavits of:‑‑ (1) S. Venkataraman from Dr. Reddy's Laboratories Limited India. (2) Muhammad Osman Bhatti, Retd. Controller of Patents and Designs, Government of Pakistan. (3) Prof. Dr. S. M. Ifzal, Ph.D. in Organic Chemistry, from University of Wales, U.K. (4) Dr. C.M. Ashraf having qualification of Ph.D. from U.K. in Organic Chemistry. (5) Prof. Rashid lqbal, having degree of Ph.D. from the University of London, U.K. Head of Organic Chemistry Section, Department of Chemistry, Quaid‑i‑Azam University, Islamabad. These persons, who also seem to be highly qualified and experienced in their field have disputed the case of plaintiffs and supported that of defendants. In rejoinder to all these assertions from the defendants' side again the plaintiffs have filed affidavits of (i) Dr. Professor S. Ronaq Raza Naqvi having qualification of Ph.D. in Chemistry ' from Cambridge University, (ii) Mr. Jean Louis Joseph Comte from Fribourg, Switzerland, (iii) Mr. Masood Raza, (iv) Dr. Elias J. Corey and (v) Mr.Vyacheslav Mikhailovich Kopelevich. These persons in their affidavits have again supported the case of the plaintiffs and disputed the case of the defendants. Thus, it will be seen that before this Court there are two sets of documents, the veracity and authenticity whereof cannot be judged by this Court at this stage without recording of evidence of the parties and putting these witnesses to the test of cross‑examination, if the parties opt to examine them in Court. The other contentions of Mr. Munawar Ghani noted at Serials Nos.(a), (b) and (c) above, are also of such nature that same cannot be decided summarily at this stage. The fact remains that at this stage there is a serious challenge to the claim of infringement of patented right of the plaintiffs Pfizer Limited from the defendants' side. In this context, it is significant to note that under the ad‑interim orders passed in these suits the benefit of Patent No.130621 has already been availed by the plaintiffs for last almost three years. The result of operation of such ad‑interim injunction orders is that the defendants‑ in the two suits are out of their business and on highly disputed facts the plaintiffs are enjoying the benefit of their monopoly with regard to the Patent No.130621. In my humble view in the above circumstances it will not be just, fair arid proper to hold that the plaintiffs have prima facie case in their favour for grant of injunction. Looking the things from one angle, it may appear that pricing is not a relevant consideration for examining the question of infringement of, a patent but from another same is material for considering the question of grant or refusal of equitable relief of injunction by the Court as any disproportionate and exorbitant pricing of a patented medicine and exploitation of monopoly by a company in this context may swing the balance of convenience against such party found exploiting such monopoly by overpricing and seeking an undue cover to such monopoly and exploitation through injunction. With reference to the pricing of patented medicine in question Mr. Munib Akhtar, learned counsel for plaintiffs Messrs Pfizer Limited candidly did not dispute before the Court that in Pakistan plaintiffs' company is selling their patented medicine under the name of 'Norvasc' at a much higher price (i.e. according to Annexure C/2 of the plaint in Suit No. 1024 of 1998 and Annexure B/ 1 of the plaint in Suit No. 1025 of 1998 the price of one pack of 20 tablets of 10 mg. each for Rs.518.34 i.e. Rs.25.917 per tablet and according to para. (10) (iii) of the counter‑affidavit of Mr. Saeed Allahwala one pack of 20 tablets for Rs.270 i.e. 13.50 per tablet) while the same medicine under the name of Amlogard is being sold by the plaintiffs' company in neighbouring country India at Rs.47.82 for one pack of 30 tablets of 5 mg. i.e. Rs.1.594 per tablet (see Annexure D/C to C.M.A. No.3297 of 2001). When asked to explain this anomaly and glaring difference in the pricing of the same medicine by the plaintiffs' company in the two neighbouring countries, the only explanation extended by the learned counsel was that as their patented pharmaceutical compound is not a patented pharmaceutical compound in the neighbouring country India therefore due to open competition in pricing of that product in that country with other companies manufacturing and selling the same medicine under the other branded names they have to keep their price competitive and as much low as mentioned above. In other words the learned counsel conceded to the position that the monopoly in the patented medicine in Pakistan is being exploited by the plaintiffs' company to the prejudice of the poor people of this country in need of their medicine, which is obviously against public interest. Looking the things from another prospective it will be seen that plaintiffs' company 'can afford to sell their patented medicine to more than one billion citizens of the neighbouring country India and also to the citizens of many other countries, where their medicine has not been patented, at a very low price in comparison to the one being charged in Pakistan, without burdening them with the so‑called amount spent by their company in the process of research and experiments, which is the only pretext for high pricing of their product in Pakistan and thus a different standard is being followed which is being protected under the cover of patent law of this country. Besides, reference to an article published in 'The Medicoment' weekly issue of October 15, to November 14, 1998 and an invoice dated 3‑9‑1998 filed by defendants Atco Laboratories (Pvt.) Limited is also relevant to show that how the patented pharmaceutical compound I.e. Amlodipine Besylate which is available in the international market at dollars 230 per kg. is being imported by the plaintiffs' company.Pfizer Limited at an ostensible price of dollars 30,000 per kg. so that, on one hand, they may justify their highly exorbitant pricing of this medicine in Pakistan and on the other hand to take away valuable foreign exchange from the country. In this context, it is also significant to note that Atco Laboratories (Pvt.) Limited (defendant in Suit No.1024 of 1998) have been selling their medicine under the name of Amlod and one pack of 20 tablets is being sold for Rs.150 i.e. Rs.7.50 per tablet while Messrs Himont Pharmaceuticals (Pvt.) Limited and Squares Pharmaceuticals (Pvt.) Limited, defendants in Suit No.1025 of 1998 are selling their medicine in the market under the name of Cardiosil at a price of Rs.159 for 20 tablets of 5 mg. i.e. Rs.7.59 per tablet. In addition to this, as stated in the affidavit of Chief Executive of defendant Atco Laboratories dated 7‑10‑1999 certain other pharmaceuticals companies are selling their similar product at the following rates:‑‑ S. No. Product Company Pack MRP 1 Amlocard Pharmaceutic 20's 120/? 2 Sofvas Wilson's 20's 51/? 3 Vespin Amson 20's 50/‑ It is pertinent to note that the patented pharmaceutical compound of the plaintiffs and similar other compounds manufactured by other pharmaceuticals companies are mainly used for treatment of high blood pressure and therefore, the patients suffering from this ailment must be taking such medication out of necessity and thus it cannot be said that such treatment can be 1 avoided by them without any serious risk to their health. In the given circumstances it is clear that grant of injunction in favour of plaintiffs Messrs Pfizer Limited will place them in an undue and unjust advantage, it will be against public interest and also against the principles of equity. Coming to the question of irreparable loss and injury and also considering the question of balance of convenience from yet another angle it will be useful to refer the case of Brupat Limited and another v. Sandford Marine Products Limited 1983 RPC 61, In this case Templeman L.J. while considering the question of grant or refusal of ‑Interlocutory relief of injunction in a case of infringement of patent, while allowing the appeal and thereby discharging the injunction on the defendants, observed as under:‑‑ "In order to decide whether and how long to extend the term the Court will consider the loss or damages suffered as a result of hostilities. In most, if not all, cases there will be evidence of the number of sales made before the war and of the number of sales made when the war began and the number of sales, which were made after the‑ effect of the hostilities had passed off. There will be relevant statistics of which the Court can pay regard. The difficulty in the present case is that there is no past history, and future history will not necessarily be a guide as to what might have happened. An additional complication in the present case is that one of the financial backers of the defendants is very much concerned with this present litigation and his attitude towards supplying finance for the present and future activities of the defendants may be materially affected by the ability of the defendants now to make and sell their Sea Claw anchors. I have come to the conclusion that the plaintiffs can be protected and the defendants cannot. In all these cases there is a certain amount of rough justice, but I see no reason to ignore the lead given by the Vice‑Chancellor in the UPC case. On the balance of convenience, I am fortified by the decision of this Court in SKM S.A. v. Wagner Spraytech (U.K.) Limited (1982) R.P.C. 497, a decision of Liver L.J., and my Lord Fox L.J. That was a very similar case in the sense that both sides were concerned at loss of profits which would occur if an injunction we're or were not granted. Oliver L.J. said it is true that:‑‑ 'the assessment of damages, if the plaintiffs succeed at the trial and no injunction is granted in the meantime, has features of difficulty. For instance, how many [articles] would the plaintiffs have sold if their total monopoly had been preserved? How many spares and how much subsidiary equipment would they have sold? What prices would they have been able to command if there had been no competition in the market? And what is the impact of reduced sales on their other business and overheads? I agree that there are inevitable difficulties of this sort, but nothing in the evidence has convinced me that they are so formidable as to preclude the Court from arriving at a reasonably accurate assessment of any loss suffered. There will, after all, be a substantial number of known factors. The past sales of the plaintiffs are known; the ratio of spares 'and so on;' their estimates of future sales volumes are known.' But considering the defendants, the learned Lord Justice came to the conclusion: "That the likelihood of any damages being an adequate remedy if they prove right at the trial is very much less, for in their case there are virtually no certainties. They have not been selling their equipment long enough to establish a clear sales pattern; there will be no actual sales which can be used to assess the demand that there might have been if the defendants had been free to sell. The answer given, that they have their own estimates of future sales to go on, seems to me to be an inadequate one because, without the experience of the market, it is really quite impossible to say whether or not those estimates are well‑founded." All those observations apply with force to the present case, although the exact facts of two cases differ. Both in the SKM case and in the present case we have this difficulty of a plaintiff who is well in the field and a defendant who is just starting. In those circumstances it is easier to assess the damages of the plaintiff than it is to assess the damages of the defendant." In the facts and circumstances of the present case, the above principle is fully attracted and I am also in agreement with such conclusion. As a result I have no hesitation to hold that neither balance of convenience lie in favour of the plaintiffs nor they will suffer any irreparable loss and injury in case of refusal of injunction and the loss, if any, which may be sustained by the plaintiffs' company due to refusal of injunction, would be calculable in 'terms of money and to protect their interest an appropriate order could be passed by this Court while disposing of the injunction applications. Coming to the case‑law referred and relied by Mr. Muneeb Akhtar, Advocate, it may be observed that there is no cavil to the principles propounded in these cases, but in the facts and circumstances of the present case as discussed above in detail, the same are ~ quite distinguishable. For the forgoing reasons, while dismissing the two injunction applications C.M.A. No.7184 of 1998 in Suit N.1024 of 1998 and C.M.A. No.7186 of 1998 in Suit No.1025 of 1998 and vacating the ad‑interim orders in operation it is further ordered that the defendants Messrs Atco Laboratories (Pvt.) Limited in Suit No. 1024 of 1998, Messrs Himont Pharmaceuticals (Pvt.) Limited and Squares Pharmaceuticals (Pvt.) Limited in Suit No.1025 of 1998 shall maintain a complete and honest monthly statement of accounts of production and sale of their questioned medicine in the market and on monthly basis and without fail submit duly certified true copies of such statements with the Nazir of this Court and another copy thereof be supplied to the learned counsel for Messrs Pfizer Limited or their attorney. In case Messrs Pfizer Limited are not satisfied in any manner about such statements of production and sale filed by the defendants in Court it will be open for them to move a proper application for appointment of Commissioner for monitoring such process to ensure rendition of correct and fool proof accounts by the defendants in this regard. JUDGE Orders on C.M.A. No.3609 of 1999 in J.M. 24 of 1999. Through this application petitioners Messrs Atco Laboratories (Pvt.) Limited have mainly prayed for an interim order for suspension of registration of Patent No.130621, issued in favour of respondents Messrs Pfizer Limited. Mr. Munawar Ghani, learned counsel for petitioners and Mr. Munib Akhtar, learned counsel for respondents in this case have argued this application alongwith C.M.A. No.7184 of 1998 in Suit No.1024 of 1998 and C.M.A. No.7186 of 1998 in Suit No. 1025 of 1998 which have been disposed of by me in terms of the order passed above. The relevant facts of the parties' respective case, contentions of their counsel and the case‑law referred by them have already been noted in the above order hence same need not be reproduced here. For disposal of C.M.A. No.3609 of 1999, at this stage, it will suffice to observe that admittedly, the respondents Messrs Pfizer Limited are availing the benefits of registration of Patent No.130621 in their favour since 1986 and before commencement of present round of litigation in the year 1998, the petitioners or anybody else had not challenged registration of their Patent No.130621. The respondents under section 12 of the Patents and Designs Act, 1911 are entitled to avail the benefit of this patent for a period of 16 years from 1986 and uptill now they have already availed such benefit for more than 15 years. Thus, at this belated stage no case for suspension of their registration and grant of relief prayed in C.M.A. No.3609 of 1999 is made out by the petitioners. In addition to this the factual controversy raised by the parties cannot be resolved without recording of evidence and therefore, at this stage, the petitioners have no prima facie case for I grant of interim relief. The parties have already been put to terms in the above order and for this reason too this application is liable to be dismissed. Order accordingly. Q.M.H./M.A.K./A‑244/K ????????????????????????????????????????????????????????????????? Order accordingly.