Injunctions: Paradigm shift for India’s innovators
The interim or preliminary injunction plays a crucial role in IP cases as the focus of the IP holder is to seek an immediate order to stop the infringing activity so as to protect its market share.
For a party seeking preliminary injunction, a three-factor test has been laid down by the courts: 1) to establish a prima facie valid case; 2) the balance of convenience is in its favour; and 3) irreparable injury or loss that it would suffer if the injunction is not granted.
The grant of preliminary injunction in a patent infringement cases in India has evolved gradually, with opinion of the courts varying depending on
the complexity of the case. Further, it is common in patent infringement case for the other side to challenge the validity of the patent as a defence to the infringement action.
Case studies
The two judges bench of the Delhi High court, while deciding an appeal filed by Roche in F Hoffmann-La Roche & Anr v Cipla (FAO(OS) 188/2008) on April 24, 2009, noted that: “Without indulging in an exercise in semantics, the court when faced with a prayer for grant of injunction and a corresponding plea of the defendant challenging the validity of the patent itself, must enquire whether the defendant has raised a credible challenge.”
“At this stage of course the court is not expected to examine the challenge in any great detail and arrive at a definite finding on the question of validity. That will have to await the trial. At the present stage of considering the grant of an interim injunction, the defendant has to show that the patent that has been granted is vulnerable to challenge.”
