TC – 02 P

1st SJCL MOOT COURT COMPETITION, 2021

Before,
The Hon’ble High Court
Melhi

MEMORIAL FOR THE PLAINTIFF

M/S COVITECH LABORATORIES

(PLAINTIFF)

V.

M/S REE SAW TECHNOLOGIES

(DEFENDANT)
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................................... 3

INDEX OF AUTHORITIES ..................................................................................................................... 4
STATEMENT OF JURISDICTION ........................................................................................................... 6
STATEMENT OF FACTS ....................................................................................................................... 7
ISSUES ............................................................................................................................................... 9
SUMMARY OF ARGUMENTS ............................................................................................................ 10
ARGUMENTS ADVANCED................................................................................................................. 11
1. Whether the Act done by Mrs. Divya Vishwanath and Mr. Rajesh is justifiable or not? ......... 11
2. Can the Public interest be considered affected? ................................................................... 13
3. Whether the plaintiff is entitled to injunction as prayed for? ............................................... 15
PRAYER ........................................................................................................................................... 18

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LIST OF ABBREVIATIONS

AIR All India Reporter

Ors Others
S Section
& And
Anr Another
Hon’ble Honorable
No Number
r/w Read With
SC Supreme Court
SCC Supreme Court Cases
Vs Versus
i.e That is
National Education for Medical Devices and
NEMDPER
Pharmaceutical Education and Research
FSA Federal States of Averna
Asst. Assistant
Art. Article
DELHC Delhi High Court
Ltd Limited
Inc Incorporation
LLC Limited Liability Company

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INDEX OF AUTHORITIES

Table of Cases:

1. Novartis AG and Anr Vs. Nacto Pharma Ltd, CS (COMM) 229/2019 and I.As.
11304/2019, 11305/2019.
2. Vringo Infrastructure Inc. Vs Indiamart Intermesh Ltd., I.A. 2112/2014 in C.S. (OS)
314 of 2014.
3. Cipla Ltd Vs. F Hoffmann- La Roche Ltd &Anr, RFA (OS) Nos.92/2012 & 103/2012.
4. Indoco Remedies Ltd Vs. Bristol Myers Squibb Holdings, ICL 2020 Del. 485.
5. Natco Pharma Limited Vs. Bayer Healthcare LLC, FAO(OS) (COMM) 158/2019 and
CM APPL. 30589/2019.
6. Novartis AG and Anr. Vs. Cipla Ltd, I.A. 24863/2014 IN CS(OS) 3812/2014.
7. Astrazeneca Ab &Anr Vs Torrent Pharmaceuticals Ltd, CS(COMM) 323/2020.
8. Natco Pharma Ltd Vs. Bristol Myers Squibb Holdings, FAO(OS) (COMM) 160/2019
and C.M.No.31063/2019.
9. Astrazeneca Ab &Ors Vs. P Kumar &Anr, I.As.3986/2018 & 5096/2018 in
CS(COMM) 749/2018.
10. Merck Sharp & Dohme Corporation &Anr Vs. Glenmark Pharmaceuticals Ltd,
CS(OS) 586/2013 & CC No. 46/2013 & I.As. 9827/2013, 8048/2014 & 13626/2015.
11. Shilpa Medicare limited Vs Bristol- Myers Squibb Company, FAO (OS) 96/2014.
12. Symed Labs Ltd Vs. Glenmark Pharmaceuticals, CS (OS) NO. 678/ 2013.
13. F Hoffmann- La Roche Ltd &Anr vs. Cipla Ltd, 148 (2008) DLT 598, MIPR 2008 (2)
35.
14. Cipla Ltd Vs F Hoffmann- La Roche Ltd &Anr, RFA(OS) 92/2012.
15. Astrazeneca Ab &Anr Vs Intas Pharmaceuticals Limited, I.A. 8826/2020 in CS
(COMM) 410/2020.

Books:

1. Manjula Guru &M.B.Rao, Patent Law in India (Wolters Kluwer 2010).

2. Adarsh Ramanujan, Patent Law: Cases and materials: A Synthesis for India (Wolters
Kluwer 2020).
3. P.Narayanan, Patent Law (Eastern Law House 2020).

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Websites:

1. https://indiankanoon.org/
2. https://www.manupatrafast.com/pers/Personalized.aspx

Statutes:

1. Indian Patents Act, 1970.

2. The Constitution of India.
3. Patents (Amendment) Act, 2005.

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STATEMENT OF JURISDICTION

The Hon'ble High Court of Tianzhuanhas the Jurisdiction to conduct the enquiry and trial
under Section 48, Section 104, and Section 108(1) of the Tianzhuan Patent Act, 1970.
Additionally, this Hon'ble Court is authorized to conduct the trial under the FSA Civil
Procedure Code, 1908 - Order 7 and Rule 1 and 2.

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STATEMENT OF FACTS

1. M/s. Covitech Laboratories is a company based in Xalonia, FSA involved in research

and development of Pharmaceutical products. The Company is committed in creating
a healthier world for everyone.

2. The company is committed to advancing care for patients around the world, by
bringing forward medicines in areas of unmet medical needs.

3. This company in collaboration with NEMDPER in Tianzhu has developed a drug

called “Releiver” to cure the congestion in lungs.

4. M/s. Covitech laboratories have outlined for the research and later all the research and
experiments were conducted by NEMDPER.

5. A patent application was filed in which Mrs. Divya Viswanath Asst. Professor and
Mr. Rajesh a Post-Doctoral student at NEMDPER were named as inventors and M/s.
Covitech Laboratories and NEMDPER were named as Applicants in the Patent
Application. After all the due examination, the patent has been granted.

6. M/s. REE SAW Technologies a pharmaceutical manufacturing and distribution

company which was started in the year 2020 by Mrs. Divya Viswanath and Mr.
Rajesh and it was inaugurated by Minister of Pharmaceuticals Mr. Krishna Reddy.

7. As M/s. Covitech Laboratories already existed in the market, it started manufacturing

the drugs but NEMDPER couldn’t start the commercialisation because of it being an
academic institution.

8. Covid-19 has started spreading across the globe and as the “Releiver” being the only
drug to cure congestion in lungs, there was huge demand of the drug.

9. Due to the increase in the demand, compulsory licenses were granted to big Pharma
companies and for the same reason Tianzhu had started exporting the drug across the
globe.

10. Eventually Mrs. Divya Viswanath and Mr. Rajesh decided to manufacture the drug
“Releiver” as being inventors and also because of the increase in the demand.

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11. The license sought by M/s. REE SAW has been denied by the M/s. Covitech
laboratories but the same has been orally accepted by NEMDPER. Eventually they
reached out to the Minister Krishna Reddy and explained the need to manufacture the
drug under S 92 of Tianzhuan Patent Act, 1970. They also sought the compulsory
license from the Minister for which they have received a positive response.

12. Eventually there was a lack of availability of the drug in the market, M/s. REE SAW
Technologies started manufacturing and distributing the drug.

13. Because of which M/s. Covitech Laboratories initiated a civil suit of Patent
Infringement against M/s. REE SAW Technologies and sought Preliminary injunction
against them.

14. M/s. Covitech Laboratories had filed a civil suit in the commercial division of Melhi
High Court as there was patent right infringement by the M/s. REE SAW
Technologies.

15. So, the court issued notice to the defendant and posted the matter on 17th July, 2021.

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ISSUES

1. WHETHER THE ACT DONE BY MRS. DIVYA VISHWANATH AND MR.

RAJESH IS JUSTIFIABLE OR NOT?
2. CAN THE PUBLIC INTEREST BE CONSIDERED AFFECTED?
3. WHETHER THE PLAINTIFF IS ENTITLED TO INJUNCTION AS PRAYED
FOR?

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SUMMARY OF ARGUMENTS

1. Whether the Act done by Mrs. Divya Vishwanath and Mr. Rajesh is justifiable or
not?

It is humbly submitted before the Hon’ble High Court of Melhi that the act done by both of
them is not justified. Defendant infringed the rights of the plaintiff and the consent granted
by NEMDPER does not meet the valid essentials. So, the manufacturing and distribution of
the drug “Releiver” done by both Mrs. Divya Vishwanath and Mr. Rajesh is not justifiable.

2. Can the Public interest be considered affected?

It is humbly submitted before the Hon’ble High Court of Melhi that the public interest will
not be affected. The plaintiff has always given their first priority to public interest and that is
the reason they have been granting compulsory license to big companies so that there would
not be any shortage of the drugs. The grant of injunction too will not in any way affect the
public interest.

3. Whether the plaintiff is entitled to injunction as prayed for?

It is humbly submitted before the Hon’ble High Court of Melhi that the plaintiff is entitled
for the injunction as prayed for because the four essentials to grant the injunction i.e., prima
facie case of infringement, balance of convenience, irreparable injury and public interest are
in the favour of the plaintiff. Their patent and suit being valid too, they are entitled to the
injunction.

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ARGUMENTS ADVANCED

1. Whether the Act done by Mrs. Divya Vishwanath and Mr. Rajesh is justifiable or
not?

No, the manufacturing and distribution of the drug “Reliever” done by Mrs. Divya
Vishwanath and Mr. Rajesh is not justifiable. Despite of declining the license, Mrs. Divya
Vishwanath and Mr. Rajesh started manufacturing the drug, which contravenes S. 481 of the
Tianzhuan Patents Act of 1970. This Section confers upon the patentee the exclusive right to
prevent third parties from the act of making, using, selling or importing that product in India
if the subject matter of the patent is a product. Hence this act says that the act done by both of
them cannot be justified.

In one of the cases Delhi High Court has clearly explained S. 48 of the Tianzhuan Patents
Act of 1970 as follows: 2

(a) Where the subject matter of the patent is a product, the exclusive right to prevent third
parties, who do not have his consent, from the act of making, using, offering for sale, selling
or importing for those purposes that product in India

(b) where the subject matter of the patent is a process, the exclusive right to prevent third
parties, who do not have his consent, from the act of using that process, and from the act of
using, offering for sale, selling or importing for those purposes the product obtained directly
by that process in India"

An inventor can only hold the moral rights which are related to the invention which includes
right to have his or her name in association with his or her invention3. This gives the inventor
the right to be named as an “inventor” of the invention made by him or her. By which their
names must be mentioned on the patent certificate. The above-mentioned criteria were
fulfilled by the plaintiff i.e., the names of the defendants have been mentioned in the patent
application as inventors. The economic rights are considered to be proprietary rights
provided to the owner(s) of the invention. The economic rights constitute the right to restrict

1
Indian Patents Act,1970, § 48, No. 39, Acts of Parliament,1970 (India).
2
Novartis AG and Ors. vs. Natco Pharma Ltd, CS (COMM) 229/2019 and I.As. 11304/2019, 11305/2019.
3
Ahmad Saleh, Patents: Inventorship vs. Ownership, AL TAMIMI AND CO.(March 2020),
https://www.tamimi.com/law-update-articles/patents-inventorship-vs-ownership/.

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others from exploiting the invention without authorization including the right to make, use,
offer for sale or import the patented invention inside the country where the patent has been
granted. By this we clearly understand that the act done by the defendant infringes the rights
provided to the plaintiff. Therefore, we can state hereby that the rights of the inventors are
limited when compared to the rights of the patent holders.

The defendant being denied from the approval of the license by the M/s. Covitech
laboratories, requested for the same to NEMDPER, and got an Oral consent on the same
which is considered to be invalid 4. So according to this Section the consent acquired is not
valid which invalidates the act done by the defendant.

It was contended in one of the cases 5 that according to S. 68 of the Act, an assignment is not
valid unless the same is in writing and duly executed. Because of the above deficiencies it
was urged to be not duly executed.

S. 68 also provides that an assignment inter alia by way of a license of a patent has to be
compulsorily by way of an instrument in writing embodying all the terms and conditions
governing their rights and obligations. 6

With the help of the above-mentioned cases and S. 68 it is clear that there must be an express
consent in order for it to be valid. Despite of declining the compulsory license by the plaintiff
and the act done by the defendant under the assurance of the oral consent given by
NEMDPER is therefore invalid.

Therefore, the inventor’s rights to be mentioned in the patent application are not infringed by
the plaintiff. Despite this,defendantviolated the rights of the plaintiff under S. 48 and failed to
fulfill the requirements mentioned under the S. 68. Hence considering the above reasons their
act cannot be justified.

4
Indian Patents Act,1970, § 68, No. 39, Acts of Parliament, 1970 (India).
5
Vringo Infrastructure Inc. vs. Indiamart Intermesh Ltd., I.A. 2112/2014 in C.S. (OS) 314/2014.
6
F. Hoffmann-La Roche Ltd., Switzerland and OSI Pharmaceuticals, Inc., New York vs. Cipla Ltd., RFA (OS)
Nos.92/2012 & 103/2012.

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2. Can the Public interest be considered affected?

No, the public interest is not affected. The plaintiffis committed to create a healthier world
for everyone. For more than 50 years, they have worked to construct a better environment by
tackling the solutions for unanswered question in their way. They have put utmost efforts to
find medications and treatment for life threatening diseases; they in fact pursued the
impossible. They are experts in internal research and they also provided medicines in the
areas which are having medical needs. They also entered into collaboration with various
other institutions in order to find new medical invention. In the same way, the plaintiff came
in collaboration with an academic institution named NEMDPER in Tianzhu and developed a
drug called “Releiver”. And the plaintiff played a crucial role in giving an outline for the
research.

At the time of Pandemic “Releiver” was the only drug which could ease the congestion in the
lungs caused due to viral infections such as SARS-CoV-2 or COVID-19 and other such
influenza. Hence it is clear by looking at the above-mentioned points that plaintiff never
created an environment which would affect the public interest.

One of the concepts that would affect the public interest is the lack of availability of the
medicines which was questioned by the defendant, but when we take our case into
consideration there is nothing which could prove the lack of availability of the drug. In
fact,plaintiff started granting compulsory license to the companies to have surplus medicines
available. As stated earlier the defendant did not provide any evidence to show inadequate
availability of medicine.

In one of the cases 7 court held that:

“Indoco’s request to sell the drug was denied by the court citing that there was no
evidence for shortage of the Bristol Myers drug to allow the sale of the generic
drug and also it did not prove any overwhelming public interest reason.”

By referring to a similar case 8 which laid the following:

7
Indoco Remedies Ltd. V. Bristol Myers Squibb Holdings, ICL 2020 Del. 485.
8
Novartis AG vs. Cipla Ltd.,I.A. 24863/2014 in CS(OS) 3812/2014.

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“The question to be asked at this stage is whether there exists any such circumstance showing
the extreme demand of the patented product in question as per the material available on
record showing imminent need or dire straits reflecting the plaintiff’s inability to provide the
medicine in question to the consumers except the concerns emerging from articles which are
noteworthy yet general in nature. I find that there is no material on record suggesting the
demand of the said patented product outstripping the supplies on the basis of the public
interest. Rather, there exists a contra material on record wherein the plaintiff is stated to have
a surplus medicine available and agrees to further accelerate the supplies if need be.

Firstly, the defendant has to inform the court how the demand of the product is more than
that of the supply through some statistics and in which area and only then question of the
shortage or non-availability will be relevant”

As held in the above cases the material evidence to prove the lack of availability is necessary
but the defendant had just made an oral statement about the shortage of the drug without any
proof, hence it cannot be considered as a valid claim.

In the same case it was also held that, “It is submitted by the defendant that the Constitution
of India under Art. 21 protects the 'Right to life' of its people. This Right to Life enshrined in
the Constitution is not merely a monotonous statement but an obligation that no person shall
be deprived of his life of personal liberty except by procedure established by law. This
solemn obligation has been interpreted by the Supreme Court to include the 'Right to Health'.
The statutory right granted to a patentee under patent law is always to be exercised in a
manner which protects preserves and promotes the Constitutional intent to promote the right
to life and not in a manner contrary thereto.”9 As held in the above case the plaintiffhas
always given priority to the public health. Their efforts in research, invention of the
medicine, manufacturing and distribution show the same. Hence by all the reasons stated
above it is clearly established that the plaintiffhas never acted in such a way to cause harm to
the public interest.

9
ibid.

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3. Whether the plaintiff is entitled to injunction as prayed for?

Yes, the plaintiffis entitled to injunction as prayed for. The injunction can be granted only in
the following 4 circumstances, they are as follows:

(1) Prima facie case of infringement.

(2) Balance of convenience.
(3) Irreparable injury.
(4) Public interest.

Prima facie case of infringement: In our case the defendant started the manufacturing and
distributing the drug “Releiver” despite of denial of compulsory license by the plaintiff. So,
this clearly states that there was literal infringement 10 of the rights of the plaintiff. So, in this
case there is prima facie case of infringement.

Balance of convenience: 11 The inconvenience caused to the plaintiff when the injunction is
refused would be greater when compared to the defendant. If injunction is not granted then it
would cause continuous infringement to the rights of the plaintiff. If the injunction is granted
then it would neither cause any loss to the defendant nor the public, because the plaintiffhas
been granting compulsory license to the other companies and hence it would not create any
shortage in the drugs. When we compare both the circumstances mentioned above there is
greater loss to the plaintiff. So, the second aspect is in the favour of plaintiff.

Irreparable injury: The act done by the defendant would motivate and encourage the other
companies to start the production without compulsory license which would cause irreparable
loss to the plaintiff and also infringe the rights of the plaintiff because they are the patent
holders.

Public interest: Plaintiff have always tried to protect the public interest. We can support this
argument by stating the fact that the plaintiff had started granting compulsory license to big

10
Literal infringement refers to incidents involving the exact copy of a patented item being used, sold, or
imported. This copied version would contain every feature outlined in the original patent.
11
'Balance of convenience' means the comparative mischief or inconvenience to the parties. The inconvenience
to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if
it is granted.

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pharma companies to increase the manufacture and production of the drug, by which we can
say that Plaintiff have never tried to act as monopoly institution. This clearly makes us
understand that the plaintiff focused on the public interest and public health. It is evident that
the fourth element too is in the favour of the plaintiff. Here granting of the injunction does
not affect the public interest because the compulsory license has been granted to the other
companies.

Granting of injunction also depends on the other two aspects which are:

(1) Validity of the Suit.

(2) Validity of the Patent.

Validity of the Suit: In the present case the suit is absolutely valid. There are no grounds to
invalidate the suit. Despite of NEMDPER not being the party to the suit. it is valid because
the M/s Covitech Laboratories was the only one which was involved in the manufacturing of
the drug and NEMDPER was only an academic institution and it did not involve in the
commercialization of the drug too. So hence we can say that the suit filed by the plaintiff for
the injunction was valid.

Validity of the Patent:12 The essentials of the valid patent are (a) Patentable subject matter13,
(b) Novelty14, (c) Inventive step15 and (d) Capable of industrial application16.

With respect to patentable subject matter, the drug “Releiver” does not fall under Ss. 3 and 4
so it has a valid subject matter. Novelty is an important criterion in determining the
patentability of an invention; it means that the invention must be new with no same or similar
prior acts. So, the drug “Releiver” also satisfies the novelty clause too because there were no
similar prior acts of the same. Inventive step states that the invention must not be obvious to
the person skilled in the same field. The drug “Releiver” fulfills this condition too because
there were many other inventions of the drugs to ease the congestion of the lungs but none of
them were effective. So, it clearly states that the invention was not obvious. The fourth
requirement is it must be capable of industrial application i.e., it must be capable of being
made or used in the industry. The drug “Releiver” is capable of being manufactured in the

12
Indian Patents Act,1970, § 2(1) (j), No. 39, Acts of Parliament,1970 (India).
13
Indian Patents Act,1970, § 3,4, No. 39, Acts of Parliament,1970 (India).
14
Indian Patents Act,1970, § 2(1) (l), No. 39, Acts of Parliament,1970 (India).
15
Indian Patents Act,1970, § 2(1) (ja), No. 39, Acts of Parliament,1970 (India).
16
Indian Patents Act,1970, § 2(1) (ac), No. 39, Acts of Parliament,1970 (India).

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industry and hence it satisfies the fourth condition too. By referring to all the above stated
points we can say that the patent granted is valid.

In one of the cases it was stated that17 “the Defendant had risked introducing its product in
the market. This was dishonest and done knowing full well that the product sought to be
introduced by it was already covered by a valid patent held by the Plaintiff.

Reliance is placed on the decision in Merck Sharp & Dohme Corporation (supra) to urge that
irreparable hardship and loss which cannot be compensated monetarily would be caused to
the Plaintiff, as a holder of a valid pharmaceutical patent, if the interim injunction granted by
the learned Single Judge was not continued.”

In one of the other cases it was mentioned as 18 “S. 48 confers on the patentee, his agents and
licensees the exclusive rights to make, use, exercise or distribute invention in India. The
rights of the patentee are infringed if anyone makes and supplies or commercially uses and
the patentee may be granted interim order, subject to the condition if the patent is valid. It is
not incumbent upon the plaintiff in case of infringement to show that the plaintiff has
suffered commercial loss, From the above, it is clear that if there is a strong prima facie case
and the validity is not further seriously questioned, then there is a clear way out to grant
injunction.

The Court established that a plaintiff must demonstrate:

(1) That it has suffered an irreparable injury; (2) That remedies available at law, such as
monetary damages, are inadequate to compensate for that injury; (3) That, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;
and (4) That the public interest would not be disserved by a permanent injunction.”

As mentioned in the above case all the four essentials are satisfied, the patent and the suit
being valid the plaintiffis entitled to seek the injunction

17
Natco Pharma Limited vs. Bayer Healthcare LLC,FAO(OS) (COMM) 158/2019 and CM APPL. 30589/2019.
18
Novartis AG vs. Cipla Ltd., I.A.24863/2014 in CS(OS)3812/2014.

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PRAYER

WHEREFORE in the light of the issues raised, arguments advanced and authorities cited,
may this Hon’ble Court graciously be pleased to:

a. Grant the defendant the temporary injunction to stop the manufacturing of the
drugimmediately.

b. Grant any other reliefs or direction as this Hon'ble Court deems as fit, in the interest of
Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Sd/-

COUNSEL FOR THE PLAINTIFF

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