Delhi High Court today sought the response of Switzerland-based drug major Novartis AG on the plea of Indian pharma firm Cipla against an order restraining it from making its respiratory disease drug, Indaflo, till it obtains a compulsory licence.

A bench of justices Badar Durrez Ahmed and Sanjeev Sachdeva, however, refused to pass any interim order to allow Cipla to manufacture its Indacaterol-based drug saying, it will give an early hearing to the matter.

“We will not give you an interim order. We will hear it on an early date and dispose it of. Notice. Renotify on February 5,” the bench said.

It also questioned Novartis as to how much quantity of the drug does it import in the country and why a royalty arrangement cannot be worked out.

It raised the query after senior advocates P Chidambaram and Pratibha M Singh, who appeared for Cipla, argued how Novartis could claim to working its patent when it was not manufacturing its drug Indaflo in India and was importing it in limited quantities, which too is not completely sold.

They opposed the restraint on Cipla, saying where the interests of public at large are involved, an injunction ought not to have been granted.

Chidambaram also suggested that Cipla was willing to pay royalty to Novartis for making the drug and would abide by any order of the court in this regard.

He contended that the Novartis’ drug was five times costlier than that of Cipla and was not available in majority of the medical stores in the national capital or other cities.

Senior advocate C A Sundaram, who appeared for Novartis, opposed the contentions and said that Cipla initially sold its product by copying the Swiss firm’s trademark.

He said that Cipla had also admitted to infringing the patent of Novartis.

In response to the contention that Novartis imported limited quantities of its drug, Sundaram said Cipla which started selling the medicine in October 2014 was yet to finish selling its stock, which was permitted by the High Court while restraining the Indian company from further production till it obtained a compulsory licence.

Cipla has challenged the high court’s single judge order of January 9, passed on a plea of the Swiss firm Novartis AG that holds a patent for the Indacaterol maleate salt as well as the manufacturing process for the drug.

Novartis in its interim application had sought to restrain Cipla from selling its product during pendency of the patent infringement suit filed by the Swiss pharma firm.

The court in its interim order had restrained Cipla from manufacturing its drug sold under the name of ‘Indaflo’, but allowed it to sell the stock remaining with it.

It had said the restraint on Cipla would remain till its application for compulsory licence was decided by the relevant authority.

It had asked Cipla to apply for the licence within two weeks of the order, if not already done so, and had directed the relevant authority to decide the same within six months of receiving the application.

Novartis has been selling the medicine in India as an inhalation powder and inhaler under the trademark name of “Onbrez” through its licencee Lupin Ltd, since 2010.

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