Transcript
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Welcome to the second part of our episode with Indian law students, Saudi and. Sing. And .
A significant portion of the episode. Is dedicated to comparing the Indian patent system to those in the west. Especially in terms of public interest considerations and interim measures. The conversation also delves into the importance of public interest in Indian IP litigation. Especially as it pertains to essential drugs and affordable pricing. Our guests share real world examples that illustrate the unique challenges and quirks of enforcing patent rights in India. They also talk about interim measures like Anton Piller orders and John DOE orders, which can both significantly impact the cause of IP litigation. To what’s the end, the episode, transitions into an open discussion on global IP trends. And the future of patent litigation in India, providing you with a well-rounded understanding of the topic. We start, however, with an informal chat that we began during one of our breaks. About the Jessup moot court that my two guests have been applying for. Relax, sit back and enjoy the latter half of our discussion with .
And Manya.
Welcome to IP Talks, the world’s greatest private podcast on all things intellectual property, starring some of the world’s leading IP practitioners and your host, Jan Willem Prügel. You’re in for a treat. Enjoy.
so you asked whether or not I’ve been doing the Jessup No, but I judged in the Jessup for our, in our local. So they are premutes as you, you probably aware. And in our law firm, I judged the Jessup twice without, I don’t know that much about international public law.
But it’s, I did model United Nations, which is somewhat similar. And I had it in my, my major, I guess you could call it. There was some international public law. My real major was international private law. But there are some overlaps and I, the Jessop is of course the granddaddy of them all the biggest one and the most difficult one, the most prestigious probably the most prestigious one.
I did the Wismut court, the Willem C. Wismut court in arbitration. Which I think it’s probably not quite as intense and I found more my, to my liking because it was more about money and less about people’s lives. Because like in the last few years in the Jessup, it was always about war or like extortion and corruption.
So it’s very different. And yeah, and it’s, it’s very, so you guys are signing up for that or applying for that right now. Yes, that’s
wells,
that’s intense. You guys will do awesome. I have no doubt that you’ll, if you do it, you’ll be a force to be reckoned with.
But it’s a lot of work, but you know that.
Yeah.
Yeah. Very cool. How many people are in that team? Usually? Five. Five. Five. Alright. Yeah. And so you would we, sorry,
we’re still in the process of the formation of the team. Essentially, our internals are going on and the submissions were for.
The internals. So when I discussed with you, I have a couple of submissions, both were memos that we had to submit in memorials that we had to submit in our internals in order to get the Jessup moot court.
I see. Very nice. And so the IP moot court was probably a good start to this and it gives you a leg up in your applications.
So whoever’s judging this you guys. should definitely accept these two because they’re amazing and great speakers. I can tell because I was their judge. Very impressive. Anyways.
So I okay. So then fingers crossed and I hope you’ll do well. So before the break, we were talking about the getting back to the general enforcement of patents in India and the patent litigation system. If either one of you would like to lead us through that and explain a bit how it works.
Yeah. Before anything else, I just mentioned that one small statistic that the civil case pendency in India is about 45 million cases only at the district court level. That is the smallest courts. We can, at the moment, leave the discussion about the higher courts and the Supreme Court, but only at a, at the district court level, that is the pendency.
45 million, you
said?
45 million, exactly. And if we talk about the high courts, then that is dependency in just one of the high courts of the most popular states, that is dependency. So any conversation that we have about the litigation system in India must be had with that in the background that this number, the fact that at any point in time, the judiciary is extremely overburdened.
Yeah, in that light I think Mania can explain a bit more about the IAP litigation system.
No, go ahead. But I think a very popular phrase in Indian culture is something that in Hindi or rather Urdu, it’s tarikh pe tarikh, which means a date after date. And that’s what the entirety of the Indian public see the courts as doing, simply giving one date after the other.
In fact, there is a, there’s a portal called the National Judicial Data Grid. Which gives you like a live count of the backlog that’s present in the Indian judiciary. So I’ll share the link with you. It’s a very interesting website. Absolutely.
By the way we will have show notes. So anything you can you want the listeners to see or to check out themselves, you can then afterwards send to me and then I will provide in the show notes and they can have a look at it.
Yeah, I think that’d be really useful because some of the things we’ve talked about are yeah, a bit confusing. So the problem in Indian courts, I think this is something Europeans or any other country would be familiar with is that we have a lot of people and with a lot of people we don’t have enough courts to handle the cases that come to us.
Even despite increasing the number of courts and having specialized courts, India cannot really deal with the cases it has currently and that’s why we have a backlog. And it is the same backlog that leads to a slightly slow enforcement of general IPRs in India, because IP is something that’s a part of the civil side in Indian courts.
And courts generally try to have criminal matters decided as expeditiously as they can. And then the backlog in civil cases is much more than it is in criminal cases. So the typical, I’ll just explain the structure of a typical IP litigation, and then I think Suryansh can take over. The life of Applying for a patent in India is you go to the intellectual property board, which is, I think, headquartered in Bombay.
You apply for the grant of a patent, and then there’s something called a pre grant opposition and a post grant opposition. And after it is granted, that’s where the real litigation starts. Because in India, there’s a presumption that grant of a patent does not mean the patent is valid, and it can always be susceptible to a challenge.
So you have various kinds of claims in India. I think we’ll just commence with basic patent infringement claims. The basic process is that you either go to the district court or you go to the high court. And then the onus or the burden of proof. is on the claim is on the petitioner who states that their patent has been infringed.
So the burden is usually on the company who are saying that there’s been an infringement on our patent. And then what essentially happens is, in India, because it takes a long time to get a patent enforced, a majority of cases go through something called an interim measure, where you essentially, while litigating the patent, Also apply for an interim measure.
And they’re usually granted by courts because even the court acknowledges that it’s going to take a long time for this case to actually get finished off. And that’s where I think Suryansh can pick up.
Absolutely. I believe that’s one of the very interesting innovations that the judiciary has come up with, which Mania and I were discussing just like a while ago is quite unique, but at the same time, quite has its own repercussions.
So provisional measures or interim orders, interim injunctions, there are several names for the same but they’re in the nature of essentially action taken against an infringer. Before any infringement claim is proved, and it is essentially based on a patent that a person already has, or a claim that is very strong on the part of the patentee.
There are certain characteristics, especially one of the important characteristics is harm cost to the patentee. So if the harm cost to the patentee is significantly high, based on that degree, an interim measure is given. The Delhi High Court. Which is one of the one of the largest centers for IP litigation in India is very liberal with granting interim measures.
I’ll just give an example for that matter. So recently India has been developing a jurisprudence of personality rights. For example, if I’m not sure if you’ve heard of some famous actors like Amitabh Bachchan or Anil Kapoor or someone like Jackie Shroff, all of these people are very famous actors in India, at least in India, they’re very popular and merchandise with their pictures and their voices is often sold without any permission.
And recently, the Delhi High Court has been granting interim measures to protect the sale of these merchandise, which effectively is something that just cannot exist in India. The regulation to that extent just cannot happen. It is impossible. Like the number of posters on which Shah Rukh Khan, someone like Shah Rukh Khan or Amitabh Bachchan is there is innumerous.
I don’t think it can at any point be regulated. But yeah for better or for worse, interim measures is a jurisprudence that has significantly grown on in India. It is sometimes problematic because by its very nature, it is, it’s supposed to be granted urgently. And it can even be granted ex parte.
So it can be granted without even hearing the other side because, and the defense given in that favor is that it is an interim measure essentially does not require everyone to be heard all the time because it’s for the time being, but for the time being in India is a very long time court cases can be pending for years and decades on.
And during that period. the interim measure stands as the order of law. So that can be harmful. That can be a difficulty, but at the same time, it is to some extent patentee friendly because it gives them a mechanism to address an issue in a riddled judicial system, essentially.
So where these interim measures actually come into play is usually the high court. So the typical I like to say life cycle of a patent infringement case is either you start in the civil court, which is the lowest court where the infringement has actually happened, or if your claim rises above a certain value in Indian rupees, you can just file an application in the high court.
under their original jurisdiction.
Is any of, sorry, if you already covered this, but is any one of those quicker than the other significantly?
So the high courts are usually quicker because every, almost every state has its own high court and an appeal from the high court directly lies to the Supreme Court.
So in India, we have a three tiered system. At the lowest level, we have civil courts, civil and criminal courts. At the second level, we have high courts, and then eventually we have the final court, which is the Supreme Court.
And are the judges technically trained when they do patent law? Are they exclusively doing patent litigation?
Or is that just a luck of the draw, a bit like in the US?
So it is, in some ways, it is a luck of the draw. But at the civil court level, you typically do not have judges with any experience of science or even in patent litigation. There are judges who have to read up on every matter. So typically what happens is most cases in India of patents go to the high court because it’s usually appealed by companies.
And then in the high court, and I’d say this with extreme respect, we have a lot of judges who specialize in patent law. We have Justice Pratibha in the Delhi high court, who’s writing a book on patent law currently. So there’s some judges which are really great at patent law, but then if your case will go to that judge is again, as you said,
And segregation of the pay of the IP system or the patent system is something that we do not have.
We had an IP appellate board, which essentially segregates in IP matters from other matters. And there, obviously there was some specialization, but it was taken off and it’s now a usual part of the civil law system itself. It’s. It’s essentially to a great extent, lack of the draw, because what expertise does a person have, whether they have any technical knowledge of any drugs for that matter is completely dependent on who the case falls upon.
Would you say that that the Indian judiciary is overall putting out decisions that are fair and reasoned? Or is it sometimes, because we have that in Germany as well, where we have some patent especially in the first instance, who are extremely specialized and they are highly qualified in this area.
And then sometimes we, there are some courts who are also who are competent to judge on patent matters, but who don’t have the same level of expertise. And sometimes their decisions are a bit let’s call them Difficult to predict. I don’t know what is your view maybe on, in India on this matter?
I would say that the certainty that arises as less as it may be in Indian litigation is only from the legislature because at the stage of the judiciary, it is the level of certainty is quite lesser. Especially when we vary from one high court to the other, the Delhi high court the new day, the high court based in New Delhi, that where we all study right now is extensive in terms of its IP litigation is very huge is very vast.
And it’s. In to some extent, it’s revered as well because its decisions are extremely reasoned. They are patently friendly to some extent and they are more inspired by literature and sources that are prevalent in the west But the same can certainly not be said about multiple other high courts Many of whose decisions are not even reported at the same time, the Jewish, the jurisdiction of Delhi high court will only last the extent of Delhi, which is not very huge.
It’s a, it’s one of the smaller sort of sub subdivisions, a territory in India. On the other hand, some divisions are extremely huge. Some states are extremely huge. And their intellectual property, jurisprudence is extremely uncertain as uncertain as it gets. So I would say that is the case very much with India as well.
That at the high court level, what decision you get is something you cannot control at all. Which is why most of the companies try to push at the legislative level. They try to have a negotiation or bargaining chip within the legislature so that their amendments or their requirements are pushed through at the state of, at the stage of a legislative amendments or executive rules.
rather than judicial intervention.
So I believe, so you mentioned that India is a common law system due to its British history or history with Britain. And then you should also have the Stare Decesis rule where the Supreme Court sets a case law and then the lower courts are bound by it.
So does that help at all to, to take some of the uncertainty out? Or do the lower courts do what they want, despite of what the Supreme Court may have done or said? So
I think the quantum of IP litigation usually lies in high courts. The cases that do come to the lower courts, I’d say lower courts are bound by decisions of the high court and decisions of the Supreme Court. But what lower courts usually end up doing is they distinguish the cases. And that’s something the high courts also do quite often.
So they say this case is different. So we’re not bound by the case law.
Yeah. As in every other field of law. But I really think that one commendable thing that high courts have done is that they usually try to stick to one principle because one very big IP judges. is that Indian IP law is evolving.
So rather than just the fact that you have to settle a case, there’s also the bigger picture that we have to set a precedent for Indian IP law, that our case must not be a black mark in the history of the evolution of IP litigation. And that’s something that the high courts, particularly some high courts have really incredibly done, which is they protect parent rights and they generally try to be as consistent.
in granting, in protecting patents and granting interim orders. But there again, there lies exceptions or distinguishments or cases which are completely unexpected, which are often overturned or sometimes even affirmed by the Supreme Court.
So the Supreme Court has very less role to play honestly when it comes to IP litigation because there are state regulations in play, there are sectoral divisions in play which affect everything a lot.
So the Supreme Court, whenever the Supreme Court delivers an IP judgment, it’s usually a huge cause of discussion because it’s essentially a very landmark judgment for that. For that matter, if Novartis is to be taken as an example where they held that Section 3D is to be interpreted the way it is, that is, no person can just improve something and claim for it to be a new patent.
That is one of the big examples. There was also one case which I believe the Gramophones case that happened in 1970s in India, which was another thing that we would have wanted to discuss. in the Indian European IP juncture is wherein the case essentially said that transit for the purposes of IP law in essentially means importation.
So the TRIPS agreement says that the law applicable to any good. is the law of the country of importation. And in the Supreme Court of India essentially has very clearly laid down that transit includes importation. So if any good is transiting through India, we can apply our own laws there. And that said, that settled law.
However, when Europe does the same, Which happened in 2000 10, I believe. In such cases we have made claims against it in the WTO to state that the country that is in the middle, the transit country cannot apply its own laws to seize or destroy goods. The Supreme Court has in, and the reason we give is that this is not a legislative law.
This is not a legislative provision. This is just something the Supreme Court has said. However we very use, we. use that position as a matter of law in our country. So the Supreme Court’s role is very extremely apocryphal. It’s to only set very landmark distance. Other than that, it’s mostly on the high courts.
I see. Interesting. That’s very good. Very good to know and to understand the system better. Thank you.
So moving back to the, so the enforcement and the patent litigation structure, I believe I interrupted you.
I believe a lot of what we had to cover had been has been covered within the question itself. If you had any other questions that you would have wanted to ask regarding
How common Is it for foreign companies to file proceedings in India?
Is it, do they try it a lot? Is it done or is it usually, as you said, mostly by now done on the legislative level?
I think it’s
extremely common because companies can only, there’s only so much you can do at the legislative level except to lobby. So most all cases are really extensively fought out.
In the Indian patent litigation arena and I think I think it’s, I think a good observation is that the fact that cases are appealed often, as in they go to the high courts often from the civil court or they go to the Supreme Court often is a testament to the fact that companies do continue to litigate.
their infringement claims. And I think India as a country, it might be a better, it might in generic medicines, it might not support companies, but in terms of granting patent infringement reliefs, it really comes out in favor of the, in favor of the patent owner. And I think I think a good transition point can be maybe Jan, you can tell us about what kind of reliefs do German courts offer?
Because in India, because of delay in cases, the most. The foremost remedy any kind of patent owner would want is an interim measure for the court to immediately grant an interim measure But is that different in germany or is that different in europe as a whole? Because I don’t think you have the kind of delay that we do.
So So pi measures are quite common in the large in the larger cases with companies where a lot of money is at stake and the pi measures usually at least in Germany are either sometimes they are ex parte, but more often than not, they’re also, they can also be with an oral proceeding.
And then the measures that are usually sought are injunctions so that the injuncted party no longer is allowed to use the infringed the infringed patent, any form by providing or selling the intact embodiment. It also includes the if the so this is usually done on the injunction level, and then they’re also asking for a declaration that there has been an infringement and then you would have to later.
have the main proceedings where you would then discuss further issues. So for example, in the main proceeding, they would also ask for the injunctions. They would ask for a declaration that there has been an infringement and then therefore there’s damages to be paid, then the damages themselves the amount of damages, they would then be discussed in a subsequent proceeding and in order to be able to quantify the damages that are being asked for the companies would claim access to the books that had been associated to the accounting in order to be able to quantify how much they had actually had as a profit.
So there, there are various ways to then Calculate the amount of damages. So they, in Germany, they’re like three accepted ways. One of them is the infringer profit, which is commonly done where they say, okay the infringer has had these and these profits. And it also allows the infringed part, so the patentee to look into some of the business practices of the party that is being sued.
Another one is a license analogy. So you’re asking for a license that you know, for the money that you would’ve been able to get as a license if you had given a license. That allows the companies also, and also the company, so the patentee to not having to open their books because they can just calculate the amount of licenses.
Of course, this is rather difficult because it depends on a lot of factors, and the third way is lost profit. Basically, the in patentee would have to show. that the amount of profit that they would have had and the amount of profit that they lost due to the infringement. This, of course, requires them to open up their books and say, look, we made this much money.
This is our profit margin. And this is why, what we left, what we lost. And this is, of course, not in the interest of the patentee and a lot of. cases, because especially in pharmaceutical cases, because then they have to show the other party look, this is our business. These are margins. And that is not very common.
In any case, a lot of times there are no quantum Proceedings or decisions on this, because usually they settle in at that point after it’s been decided that one of the parties has in fact infringed. So injunction then, Oh, then of course the product has to be removed from the cut from the market, any product that they still have in the inventory has to be destroyed.
And they have to pay for it damages and also recall and possibly other measures as well. And of course they have to open their their distribution ways and show, show information in order to, for the patentee to be able to concretize their claims. So this is what is common and it’s both PI and main.
And of course in Germany we don’t have counterclaims for for invalidity because we have bifurcated patents bifurcated patent system where you would then open up a novelty proceeding before the German federal patent court. It will, it’s different in some of the other, like in the UK, it’s very different where you can do that.
That’s probably slow closer to the Indian system, but there’s a lot of individual specialties when it comes to, when it comes to the patent litigation side for that.
I think it’s it’s quite similar, the kind of interim measures we have in India, but I think we also have very interesting measures where I remember In one case where in the Delhi high court allowed the defendant to sell the remaining stock and then granted an injunction.
So that was something that was very interesting and obviously angered the company, but then yes, I was just saying,
I believe that was the Supreme court itself, which allowed the remaining stocks.
Yeah. So I think one thing in India where, again, this public interest crops up, Is this the grant of interim injunctions itself?
And there are certain factors to be considered, one of which is there must be a prima facie case. The second is the kind of harm that’s being caused to the patentee, where the balance of convenience actually lies. And then at the last, we again have the old horse of public interest, wherein courts have quite creatively interpreted it.
But then in terms of protecting the patentee, we have similar things. We have Anton Pillar orders where, yeah, where the local police actually go and search and seize the infringing products. We have things called as John Doe orders, where in, in one case, even if it’s between parties, the injunction is granted as against everyone or against specific parties that the patentee wants it to be granted against.
I
wonder, so there’s also a criminal provision for patent infringement under German law, but as far as I know, it’s almost never being used. What about India?
I think we have a similar provision, but again, it’s almost never used because pretty much a patent case practically ends where an injunction is granted, because the company is relieved because there can be no further infringements.
So then they start losing steam and the actual decision might come out like years later.
Can you, is there a general timeline, how long a PI proceeding and how long a main action would take in India? Or is that impossible to generalize?
I think Surian can take this because, yeah,
I believe that’ll be, first of all as vague as this answer might be, I’ll have to say it depends.
Yeah. Yeah.
Just to circle back a little bit on your earlier question about how keen are companies on litigating, I believe they’re certainly extremely keen. Pfizer recently ended its 19 year old litigation at the Delhi High Court where it got a claim for the, yeah, where it got a claim for the trademark of for its trademark on Viagra and they had to fight about 19 years for it.
And that’s the first
instance, right? Yes.
Yes. In India. Yes. For which the claim awarded to them because of the lack of sufficient evidence was about it’s such a small amount. I’m having difficulty converting it into dollars should be about, I think, 20, 000. for 19 years of violation. Actually lesser.
No, that’s I’ve quoted a larger amount than it is. It’s about 4, 000.
It might not be quite reasonable to fight over that. Yeah.
So yeah, so the amount they would have spent in Delhi High Court over 19 years, they probably did not recover one 10th of that. They certainly did not recover one tenth of that.
They did not recover, I believe, a fraction of that, if I’m going into details. But, so essentially, but the compensation has to be awarded as it is. And they fought on with it and there might even still be an appeal at the Supreme Court level, which might even go on further. For even a company like Pfizer, the litigate and a trademark like Viagra, the litigation went on for 19 years only at the Delhi High Court level.
So essentially it is quite uncertain as to how long it can be for some things. For example, the case Mania mentioned where the Supreme Court intervened and granted an order that the remaining stock is immediately sold. At that time because of this order, both the parties became very interested because one had an injunction against it and the other was allowed to sell the stocks.
So they essentially were very proactive in resolving the case, and it was resolved within 30 months. But there are some cases that take much, so they, so the average will be very deceptive in intellectual property cases. The, it’s a very case by case thing, and it depends and varies largely. I see.
And but the enforcement, once you have a decision, so once you have a first instance decision, can you enforce it or do you, or is it being, or do you have to wait until the it’s final?
That’s that the law with regards to that is quite standard that you are allowed to enforce it immediately after you have it.
And it’s all it’s a requirement that the same is enforced within within six months. So mostly when it comes to IP enforcement, the contentious portions are these, that how do you get through the court system? Once you have an order, it’s mostly easier to get through with that order because injunction is not very difficult to enforce in India.
Perfect. I
mean, so you’ve given us so many interesting points of information on the Indian system. Is there anything you would like to discuss that you prepared and are willing to get off your chest?
I think I think one interesting thing that we can discuss is that
the
public interest consideration that happens in IP infringement claims, that can play out very interestingly.
A good summarization point in Indian patent litigation and to end the whole discussion around generics and enforcement is this thing called public interest in India, which is that even in granting an interim measure or in granting a final remedy, courts consider something that’s known as public interest.
Now, public interest has been a huge contentious point and it’s one of the main reasons patentees have a problem with Indian law. And one very big example could be that, not arising out of patent law actually, but rather in copyright law, which is a very famous case that dealt with the reproduction of a lot of books.
Now, a lot of big publishing houses, Springer, Kluwer, and everything, they took the case to the Delhi High Court, and the Delhi High Court created an exception for educational purposes. And the result is that now these books are freely photocopied in India. And the court said that it’s in the address of the students.
This is something that also helps us, but this is largely where the public interest consideration comes in India. Now, how it plays out in patent law is that in a certain case, the fact that the drug was an essential drug was used in denying it an interim injunction. Even in cases where courts have, there was a very landmark case of Roche v.
Cipolla, wherein the court interpreted the non obviousness requirement and said that given the price of, and the difference of the price in two drugs that were used in treating a certain kind of lung cancer and the fact that this drug, the original drug is not really available in Indian market can be a ground for us to deny release.
Of course, the actual outcome of the case also depended on a lot of technical factors, but I think public interest has largely been used by Indian courts to safeguard interests of the public when either drug is essential. Or the drug is not available at an affordable price in the Indian market.
Yeah. So just to round up our discussion from the very point that it started the roots of Indian. And I’ve, as far as my reading, it goes and Jan, correct me if you’re wrong, the roots of a lot of intellectual property litigation, especially industrial designs and patents very broadly lie in the industrial revolution.
And it’s because of that, that people started claiming that I should have some right over my invention in a lot of the countries, not. the early origin countries, but in a lot of the Western countries, that is where the root lies. So it lies in industrialization. It lies in capitalism. It lies in the development and urbanization of the world.
But in India, the roots, as I said earlier, Lies in social reform in social welfare that we should have our medicines, we should have better food products. We should have better seeds for agriculture. So at the end of the day, the consideration, the question that the courts always ask is whatever the law might be.
Would it at the end be better or worse for the common person of India? And if the answer is no, then irrespective of what the law says, irrespective of what the legislature says, irrespective of what a big company, a big pharma company from West says, the answer for the court will have to be no. So that’s
What you just said, that is that test is what the judiciary applies.
Yeah, it’s not a judicial test. It’s essentially a derivative, an impli sorry, a sort of an implication of the public interest test that ultimately it has to be beneficial for the public. A patent is a negotiation where an invention is disclosed. And only to the, so for example, our judiciary is very clear on the fact that I remember one discussion we were having in Oxford is that the pre grand disclosure is something that is being discussed in the West, especially I believe in Germany itself.
However, in India, it’s a very clear position that if you have not disclosed something previously, then you are absolutely not entitled to get any patent rights with regards to it. And Because it’s a negotiation. You disclose an invention to the public and they grant you a monopoly for a limited period of time.
So we look at our patent law in a very public centric manner. We don’t look at it in a private centric manner at all.
And that of course is at odds with a lot of the Western companies that dedicate in India. Yes.
Ideologically and financially. Yes.
But that’s also important to know, both when you market products there and when you go to litigation and you, would you say that test is rather strictly applied and regularly applied?
Or is that something that is more in the background? Because in Germany we also have rather recently added a provision that if, if there’s like a, I think if you, if there’s a very strong public interest in something, then you might not come to the conclusion that there has been an infringement.
And I think one of the cases that was about this was about a some drug on, I think, hepatitis C. And the question was if if we discontinue this I don’t know if it was a biosimilar or generic, but if this is being discontinued, then there are a lot of patients who don’t get their medicine and they can’t just switch to another brand because it was probably biological then it wasn’t just a simple swap.
And so that would seriously put them at risk for, in terms of their prolonged treatment. And even in that case, the German judiciary said, no forget it. It’s not the criterion is not met. So that is something that in Germany there, as far as I know, there haven’t been any cases or maybe not many where this public interest has been considered.
even though it’s been incorporated into the law. But what about these, the strictness or the prevalence of this in India?
It’s, in my opinion, I think I can be corrected on this, but in my opinion, it’s a last resort as well as a background measure. It’s something that runs at the background of everything, but it’s utilized and invoked as a ground only when everything else has been invoked.
Okay.
I think that’s a very important disclaimer because a large portion of our discussion is revolved around exceptions. So the law is still prevalent. So I’d say the quantum in which these exceptions, especially the public interest exception is applied is higher than that of Germany and other countries.
And that’s why India can set to be an outlier. But I really think that in a majority of patent litigation, India is like any other country is trying to enforce. The rights of the patentee and ensuring a balance between innovation and public interest.
Very interesting. Very cool. That would be a fantastic final point of our discussion, unless of course you have further topics you would like to discuss, because I understand you have done an incredible job of not only researching this very well, but also researching it while being engaged in a lot of other academic pursuits.
So I’m incredibly impressed, of course, but On the other hand, that’s, how I met you guys at the Oxford IP Moot Court. But is there anything else you would like to discuss?
Not for me, personally.
I think if we can start, we’ll never stop it. Yeah, I think that’ll be a good background. I hope the things we provide to the readers in terms of the sources we have or the research we’ve done, yeah, that can be helpful.
I think anyone listening to this can have a long table conversation with anyone about Indian patent litigation now. Wonderful.
And we’ll provide everything in the show notes that we talked about that people can read up on. And thank you so much for being here. Okay. Thank you so much guys for being available. And yeah, I it’s a lot of fun and I’m very honored that you chose to take time and to prepare so well, and there’s going to be two amazing episodes.
Thank you so
much for having us.
Yeah.
Thank you.
Awesome. It’s
really interesting to see somebody interested in Indian Patent Law and be so open to work.
To take a student’s perspective of that is also honoring. Oh, I don’t really,
I didn’t I didn’t really think about you as students when I wrote you and I don’t really see you as students in terms of, I would have never been able to do this.
When I was a law student in that level, like you, like I see you actually as I would see colleagues and, but really good colleagues, because you have an incredible amount of understanding and of knowledge. And so I don’t think anybody listening to this will necessarily think, Oh, those are obviously students.
I’m not at all. I think so. Yeah. You’re clearly. Going places. And this is just I’ll be honored to be able to say that once do something even more amazing in the future. Oh they won my podcast first. . What? Everyone else wants to speak to you.
Thank you. Yeah, you
can. Yeah. . .
Yeah. Thanks so much. There’s more than. Thank you so much. All right. Have a great Sunday. And yeah, good luck with the dress up stuff. Fingers crossed. Thank you. Thank you so much. Thank, I’ll keep you in loop. We’ll de
talk to you.
Okay. Of course. Yeah, I’m happy. Yeah. Yeah, absolutely.
Thank you. Thank you so much. All right. Take care. Bye-Bye.
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