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Ayush kumar Sharma - 1182190110

LAW OF EVIDENCE

Before the supreme Court of India

In the matters of

Sidhartha Vashisht @ Manu

Sharma.……………………………………………………………………………. APPELLANT

v.

State (NCT of Delhi)…………………………………………………………… RESPONDENT

CRIMINAL APPEAL NO. 179 OF 2007

Submission before the Hon’ble Supreme Court of India

MEMORIAL ON BEHALF OF RESPONDANT

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TABLE OF CONTENT

INDEX OF
ABBRIVIATIONS………………………………………………………………………… Pg.03
TABLE OF
AUTHORITIES…………………………………………………………………………… Pg.04
STATEMENT OF
JURISDICTION………………………………………………………………………… Pg.05
STATEMENT OF
FACTS……………………………………………………………………………… Pg.06-07
STATEMENT OF ISSUES RAISED……………………………………………..
…………………………………… Pg. 08
SUMMARY OF ARGUMENTS……………………………………..
…………………………………… Pg. 09
ARGUMENTS
ADVANCED…………………………………………………………………………Pg.10-12
PRAYER…………………………………………………………………………………. Pg.13
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INDEX OF ABBRIVIATIONS

ABBREVIATION EXPANSION

Mr. Mister

AIR All India Reporter

SC Supreme court
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TABLE OF AUTHORITIES

STATUTE

1. THE PATENT ACT, 1970

LEGAL DATABASE
1. SCC Online
2. Manupatra

CASES
1. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries
2. Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries
3. Whirlpool Corporation v. Rahul Tondon
4. Bayer Corporation v. Natco Pharma Ltd.
5. Kapil Wadhwa v. Samsung Electronics Co. Ltd.
6. Amir Khan Productions Private Limited v. Union of India
7. Bayer Corporation v. Natco Pharma Ltd.
8. Delhi High Court in Enercon (India) Ltd. v. Enercon GmbH
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STATEMENT OF JURISDICTION

THE HON'BLE HIGH COURT OF HYDERABAD HAS JURISDICTION TO ADJUDICATE THE

PRESENT SUIT FILED BY GO INC. AGAINST HI UNDER SECTIONS 104 OF THE PATENTS ACT,
1970 AND SECTION 134 OF THE TRADEMARKS ACT, 1999, AS WELL AS THE COUNTER CLAIM
FILED BY HI FOR REVOCATION UNDER SECTION 64 OF THE PATENTS ACT. THE
INTELLECTUAL PROPERTY APPELLATE BOARD (IPAB) AT CHENNAI HAS JURISDICTION
OVER THE REVOCATION PROCEEDINGS FILED BY HI UNDER SECTION 64 OF THE PATENTS
ACT. THE CONTROLLER OF PATENTS HAS JURISDICTION TO ENTERTAIN HI'S APPLICATION
FOR COMPULSORY LICENSING OF GO INC.'S PATENT UNDER SECTION 84 OF THE PATENTS
ACT. THIS MEMORIAL ADDRESSES THE ISSUES RAISED BY THE PARTIES BEFORE THIS
HON'BLE HIGH COURT.
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STATEMENT OF FACTS

 GO INC., A NEW ZEALAND-BASED MANUFACTURER, HOLDS A PATENT (NO. 23629008)

FOR A SEPARATOR APPARATUS USED IN PHARMACEUTICAL AND MILK CHILLING

INDUSTRIES.

 THE PATENTED SEPARATOR, MARKETED UNDER THE BRAND "FLEETO," EFFECTIVELY

REMOVES IMPURITIES FROM RAW MATERIALS.

 GO INC. ESTABLISHED AN INDIAN SUBSIDIARY, GOIL, TO MARKET AND DISTRIBUTE THE

SEPARATORS IN INDIA, DEMONSTRATING A COMMITMENT TO THE INDIAN MARKET.

 HI, A MANUFACTURER OF VARIOUS MACHINERIES, APPROACHED GO INC. FOR A LICENSE

TO MANUFACTURE "FLEETO" SEPARATORS IN INDIA DUE TO HIGH DEMAND.
 GO INC. REJECTED HI'S REQUEST FOR A MANUFACTURING LICENSE, LEADING HI TO
PRODUCE SIMILAR SEPARATORS NAMED "FLITU."
 A GOIL TECHNICAL TEAM DISCOVERED INSTANCES OF PATENT INFRINGEMENT BY HI AT
TOIL BISCUIT PRODUCTS IN MUMBAI.
 AN INVESTIGATOR APPOINTED BY GO INC. CONFIRMED HI'S INFRINGEMENT THROUGH
INTERVIEWS, IMAGES, AND DISCUSSIONS.

 GO INC. ISSUED A CEASE AND DESIST NOTICE TO HI AND TBP, ALLEGING PATENT AND
TRADEMARK INFRINGEMENT.

 HI AND TBP FILED A GROUNDLESS THREAT PROCEEDING UNDER SECTION 106 OF THE
PATENT ACT BEFORE THE HIGH COURT OF MUMBAI.
 THE HIGH COURT DIRECTED GO INC. NOT TO ISSUE FURTHER GROUNDLESS THREATS AND
MANDATED PRIOR NOTICE BEFORE FILING AN INFRINGEMENT SUIT.

 HI ALSO FILED A REVOCATION PROCEEDING BEFORE THE INTELLECTUAL PROPERTY

APPELLATE BOARD SEEKING TO REVOKE GO INC.'S PATENT.
 HI APPROACHED THE CONTROLLER OF PATENTS UNDER SECTION 84 SEEKING A
COMPULSORY LICENSE FOR GO INC.'S PATENT.
 GO INC. FILED AN INFRINGEMENT SUIT (NO. 022/2019) AGAINST HI BEFORE THE
JURISDICTIONAL COURT OF THE KANGA DISTRICT COURT.
 HI FILED A COUNTERCLAIM SEEKING PATENT INVALIDATION AND APPLIED FOR THE
TRANSFER OF THE SUIT TO THE HIGH COURT AT HYDERABAD UNDER SECTION 104 OF
THE PATENT ACT.
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 GO INC., IN COMPLIANCE WITH THE HIGH COURT'S ORDERS, PROVIDED NOTICE OF THE
INFRINGEMENT SUIT TO HI AND TBP AND PURSUED LEGAL ACTION.
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Issues Raised

[I]. Whether HI's manufacturing and selling of "FLITU" separators infringes GO Inc.'s
patent rights for "FLEETO" separators under the Indian Patent Act, 1970.

[II]. Whether the claim of HI for compulsory licensing from GO Inc. is justified; and
whether the Controller of Patents is justified in hearing and deciding such a claim when the
High Court is seized of the infringement and counter claim issues and IPAB is seized with
revocation issues.
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Summary of Arguments

[I]. Whether HI's manufacturing and selling of "FLITU" separators infringes GO Inc.'s
patent rights for "FLEETO" separators under the Indian Patent Act, 1970.
It is humbly submitted before the Hon'ble Court that the respondent denies infringing GO Inc.'s
patent for "FLEETO" separators, contending invalidity due to lack of novelty, inventive step, and
insufficient description. The respondent's "FLITU" separators allegedly do not infringe when
claims are properly construed. The respondent has applied for a compulsory license, citing GO
Inc.'s failure to meet public requirements and provide affordable access, relying on Bayer v.
Natco. The respondent argues GO Inc.'s patent rights are exhausted by importation and sale in
India. The respondent alleges GO Inc. misused its patent by unfair monopolization and excessive
pricing, against public interest.
[II]. Whether the claim of HI for compulsory licensing from GO Inc. is justified; and
whether the Controller of Patents is justified in hearing and deciding such a claim when the
High Court is seized of the infringement and counter claim issues and IPAB is seized with
revocation issues.
It is humbly submitted before the Hon'ble Court that the respondent's request for a compulsory
license from GO Inc. is grounded in the stipulations of the Indian Patent Act, 1970. Specifically,
Section 84 empowers the Controller of Patents to grant such a license when the public's
reasonable needs are unmet or when a patented invention is not affordably accessible. The
demand for GO Inc.'s "FLEETO" separators far exceeds the supply, coupled with its prohibitive
pricing, which compromises public health access to essential products. This situation mirrors the
precedent set by the Bayer Corporation v. Natco Pharma Ltd., where a compulsory license was
granted under similar circumstances. Moreover, the respondent argues that the Controller retains
the authority to issue a compulsory license regardless of ongoing infringement or revocation
litigations, a standpoint supported by the Enercon (India) Ltd. v. Enercon GmbH case. Thus, the
plea for a compulsory license is substantiated by both statutory provisions and judicial precedent,
emphasizing the mechanism's role in protecting public interest and ensuring accessibility to
patented innovations.
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ARGUMENTS ADVANCED

[I]. Whether HI's manufacturing and selling of "FLITU" separators infringes GO Inc.'s
patent rights for "FLEETO" separators under the Indian Patent Act, 1970.
It is humbly submitted before the hon’ble court that the respondent, M/s. Hoggers Enterprises
(hereinafter referred to as HI), has not infringed upon the patent rights of the petitioner, M/s.
Gooble Ooble Inc. (hereinafter referred to as GO Inc.), in respect of the patent No. 23629008 for
the "FLEETO" separator apparatus. HI contends that the alleged infringement is baseless and
unfounded, and the petitioner's claims are untenable both in fact and in law.
The respondent respectfully submits that the patent in question is invalid and liable to be revoked
on several grounds specified under Section 64 of the Indian Patent Act, 1970. The claimed
invention lacks novelty and inventive step over the prior art, rendering it obvious to a person
skilled in the art. This ground is supported by the decision in Bishwanath Prasad Radhey Shyam
v. Hindustan Metal Industries (1982 AIR 1444), wherein the Supreme Court held that a patent
can be revoked if the invention lacks novelty or is obvious to a person skilled in the art.
Furthermore, the patent specification lacks sufficient description to enable a person skilled in the
art to carry out the invention, as held in Biswanath Prasad Radhey Shyam v. Hindustan Metal
Industries (AIR 1979 SC 1901).
Moreover, the respondent's "FLITU" separators do not infringe the patent claims of GO Inc.
when the claims are properly construed and interpreted. The "FLITU" separators fall outside the
scope of the claims and do not incorporate all the essential features of the claimed invention. The
respondent relies on the well-established principles of claim construction and the doctrine of
non-infringement, as enunciated in Whirlpool Corporation v. Rahul Tondon (2013 (55) PTC 446
(Del)), wherein the court emphasized the importance of properly construing the claims to
determine infringement.
Additionally, the respondent has applied for a compulsory license from the Controller of Patents
under Section 84 of the Indian Patent Act, 1970, on the grounds that GO Inc. has failed to meet
the reasonable requirements of the public with respect to the patented product, and that the
patented product is not available to the public at a reasonably affordable price. This ground finds
support in the landmark case of Bayer Corporation v. Natco Pharma Ltd. (2013 (55) PTC 575
(Bom)), wherein the court granted a compulsory license to Natco Pharma on similar grounds.
GO Inc.'s actions have limited access to quality drugs and milk products for the general public,
adversely affecting public health.
The respondent may argue that GO Inc.'s patent rights have been exhausted since GO Inc. has
already imported and sold the "FLEETO" separators in India. Under Section 107A(b) of the
Indian Patent Act, 1970, the rights of a patentee are exhausted after the patented product has
been put on the market by the patentee or with their consent. This principle is supported by the
decision in Kapil Wadhwa v. Samsung Electronics Co. Ltd. (2013 (55) PTC 120 (Del)), wherein
the court recognized the doctrine of exhaustion of rights.
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The respondent can contend that GO Inc. is misusing its patent rights by unfairly monopolizing
the market and charging exorbitant prices for the "FLEETO" separators, which are essential for
the pharmaceutical and dairy industries. This argument finds support in the case of Amir Khan
Productions Private Limited v. Union of India (AIR 1986 SC 667), wherein the Supreme Court
emphasized that patent rights should not be used in a manner that goes against public interest.
[II]. Whether the claim of HI for compulsory licensing from GO Inc. is justified; and
whether the Controller of Patents is justified in hearing and deciding such a claim when the
High Court is seized of the infringement and counter claim issues and IPAB is seized with
revocation issues.
It is humbly submitted before the Hon'ble Court that the respondent's claim for compulsory
licensing from GO Inc. is justified and in line with the provisions of the Indian Patent Act, 1970,
and the principles enunciated by the courts in various landmark judgments.
Section 84 of the Indian Patent Act, 1970, empowers the Controller of Patents to grant a
compulsory license on any of the grounds specified therein, including:
a) That the reasonable requirements of the public with respect to the patented invention have not
been satisfied (Section 84(1)(a)), and b) That the patented invention is not available to the public
at a reasonably affordable price (Section 84(1)(b)).
In the present case, the respondent has applied for a compulsory license on the grounds that GO
Inc. has failed to meet the reasonable requirements of the public, as evidenced by the significant
demand-supply gap (20 lakh units demanded, but only 2 lakh units supplied). Additionally, GO
Inc.'s exorbitant pricing of the "FLEETO" separators ($ 40,000 or approx. Rs. 24 lakhs per unit)
makes the patented product inaccessible to the general public, limiting their access to quality
drugs and milk products, and adversely affecting public health.
The respondent's claim for a compulsory license finds strong support in the landmark case of
Bayer Corporation v. Natco Pharma Ltd. (2013 (55) PTC 575 (Bom)), wherein the Bombay High
Court granted a compulsory license to Natco Pharma for Bayer's patented cancer drug, Sorafenib
Tosylate, on similar grounds. The court held that Bayer's prohibitively high pricing and
insufficient supply had failed to meet the reasonable requirements of the public, thereby
justifying the grant of a compulsory license.
Furthermore, the respondent submits that the Controller of Patents is well within their
jurisdiction to hear and decide the respondent's claim for a compulsory license, even while the
High Court and IPAB are seized with the infringement and revocation issues, respectively.
Section 84(3) of the Indian Patent Act, 1970, expressly states that the Controller's power to grant
a compulsory license is not affected by the pendency of any other proceedings, including
infringement or revocation proceedings. This provision ensures that the public interest in
accessing essential patented products is not unduly hampered by concurrent legal proceedings.
This position finds support in the decision of the Delhi High Court in Enercon (India) Ltd. v.
Enercon GmbH (2014 (59) PTC 281 (Del)), wherein the court held that the Controller of Patents
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has the jurisdiction to grant a compulsory license even if infringement or revocation proceedings
are pending before other forums. The court emphasized that the compulsory licensing
mechanism is an independent statutory remedy aimed at safeguarding public interest and
promoting access to patented products.
Therefore, the respondent humbly submits that their claim for a compulsory license is justified
and well-grounded in the provisions of the Indian Patent Act, 1970, and the jurisprudence
developed by the courts. Furthermore, the Controller of Patents is empowered to hear and decide
the compulsory licensing claim, notwithstanding the pendency of infringement and revocation
proceedings before other forums.
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PRAYER

Wherefore, in light of the charges raised, arguments advanced, may this Hon’ble Court be
pleased to adjudge, hold and declare:
a) To dismiss the infringement suit, declare the patent invalid and hold non-infringement
b) To direct grant of compulsory license, affirm Controller's jurisdiction, and declare exhaustion
of patent rights.
c) To hold patent misuse by the petitioner, award costs, and grant further reliefs.
And pass any order, direction or relief that this Honorable Court deem fit in the interest of justice
equity and good conscience.

And for this act of kindness and justice the Respondent shall be duty bound forever pray.
All of which is humbly and most respectfully submitted.

Counsels for the RESPONDENT