NEW DELHI: Indian pharma major Glenmark pharmaceuticals was today barred by the Delhi High Court from making, marketing or selling its anti-diabetes medicines on the ground that it had “prima facie” infringed the patent of US drug major Merck Sharp and Dohme (MSD).
A bench of justices S Ravindra Bhat and Najmi Waziri, while granting an interim injunction in favor of MSD, also said the price difference between the drugs of the two companies “is not so startling as to compel the court to infer that allowing Glenmark to sell the drug at depressed prices would result in increased access.”
Glenmark’s medicines, Zita and Zita-Met, cost 30 per cent less than MSD’s Januvia and Janumet, which is due to the customs duty paid by the US firm, the court said and added “no allegation has been made that MSD today sells its drugs at a relatively high price that hinders access to the drug”.
“In the present case, given the size of the diabetes drug market in India and the sheer number of patients from all economic strata of society, demand for low-priced medicines will remain, rather than any distortion of demand, due to brand loyalty or a first mover’s advantage to MSD,” it said.
“A strong case can in some instances offset an equal balance of conveniences between parties. In this case, MSD has established a prima facie case of infringement…” it also said.
The bench, however, allowed Glenmark to to sell the products in question which are already in the market (i.e. with its distributors, retailers etc.).
“However, in compliance with the injunction granted in favor off the plaintiff/MSD, it shall not henceforth further sell, distribute or in any manner take any steps towards placing in the market the drug in question, Zita and Zitamet and such of the pharmaceutical products which are covered by the claim for interim injunction in the suit,” it said.
It directed Glenmark to give a true and correct account of all stock of its anti-diabetes drugs in its factory as well as those which are in the market and permitted to be sold. PTI HMP MNL ABAAs part of an interim arrangement, which secures interests of both the parties and the public, the court directed MSD to furnish, in two weeks, an undertaking “that in the event the suit is dismissed, it would compensate Glenmark for the damage or loss caused, including but not limited to loss of earnings”.
It directed Glenmark to furnish an undertaking to comply with the injunction within two weeks from today in the suit as well as a detailed account of its earnings from sale of its drugs from the date of the filing of the present suit.
The court also directed the Indian drug major to “undertake to pay such damages, if any, which may be decided by the court if the ultimate result of the suit is a decree in favor of MSD” and said the statement of accounts be filed in four weeks.
The 81-page judgment came on MSD’s plea challenging the April 5, 2013 order of a single judge of High Court who had refused to restrain Glenmark from manufacturing and selling its medicines meant for treatment of Type-2 diabetes. –PTI
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