The Delhi High Court recently ordered the director of a pharmaceutical company to pay Rs 2 crore in damages to global pharma giant Pfizer for contempt of court and infringement of its patented compound Palbociclib.
A single-judge bench of Justice C Hari Shankar, in its January 24 order, said that in case the payment is not made by Kamlesh Singh, director of Triveni Interchem Private Limited to Pfizer, he would have to spend two weeks in Tihar jail, noting that the company had committed “wilful and contumacious contempt” of the high court’s previous order, which restrained the company from selling a compound Palbociclib. The high court isted the matter for further hearing on March 16.
Pfizer, represented by advocate Pravin Anand, argued that Triveni Interchem Private Limited and Triveni Chemicals were advertising and offering ‘for sale’ generic Palbociclib in active pharmaceutical ingredient (API) form on their websites and IndiaMART (e-commerce platform), without any permission from Pfizer who held a patent in the chemical compound.
On October 21, 2021, the high court passed an interim order restraining Triveni Interchem Private Limited and Triveni Chemicals from manufacturing, selling, advertising in any manner any product, which has, as an ingredient, Palbociclib or any pharmaceutically acceptable salt thereof, which would infringe Pfizer’s patent.
The companies were further directed to remove from their websites any indication that they are marketing or offering for sale Palbociclib or any pharmaceutically acceptable salt thereof, forthwith. Last year, Pfizer moved a contempt plea alleging that the defendant companies had merely altered the packaging in which Palbociclib was being sold by it, and had continued to indulge in the sale of Palbociclib on its own website as well as on a third-party website.
On July 7, 2022, the high court found the defendant companies continuing to sell Palbociclib, “in the teeth” of the interim injunction granted by the court, in a different packing, “as evincing wilful and contumacious conduct on their part”. The high court asked them to file a specific reply.
Following the directions of the high court, the defendant companies filed their affidavits where they contended that the infringing products had “inadvertently not been removed from the internet listing” on their platform.
“However, the affidavit sought to state that, thereafter, the products had been removed from internet listings, including the platform of Defendant 3. In as much as the aforesaid affidavit was not in terms of the directions contained in the order dated 7th July 2022, this Court, on 14th December 2022, queried of Mr. Shailender Pratap Singh, learned Counsel who appeared on behalf of Mr. Kamlesh Singh, who reiterated the submission that the defendants had never manufactured or sold Palbociclib,” the order recorded.
The defendant companies stated that they did not sell the product on their website, while the high court noted that there were emails that disproved their claim. On the apology tendered by the defendant companies, the HC remarked that the same was unacceptable, “coming from a person who is completely unwilling to disclose to this court, the exact quantity of Palbociclib which Defendant 1 dealt in”.
The high court said the defendant company had “absolutely no regard for truth”. “It appears that, with stark impunity, Defendant 1 is resorting to misstatement after misstatement before this court. To a pointed query as to why the defendant had been listing Palbociclib on its website since a point of time prior to July 2021, if the only transaction of Palbociclib undertaken by the defendant was a sale and purchase both of which took place on 22nd July 2022, Mr Sandeep Sharma, learned Counsel for the defendant has no ready answer to offer and submits that this is the instruction which his client has given him,” the high court noted.
“It is impossible for this court to believe that Defendant 1 continued to show Palbociclib as a product in which it was dealing, on its own website as well as on third-party websites, and never purchased or sold any Palbociclib whatsoever. If the present affidavit is to be believed then, even in the absence of any stock of Palbociclib with it, the defendant was advertising Palbociclib for sale on the internet. This is a clearly unacceptable position and is contrary to basic principles of trade,” the high court remarked, rejecting the company’s affidavit.
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