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OSI Pharmaceuticals

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LACK OF JURISDICTION = no part of the cause of action had arisen = INFRINGEMENT OF PATENT RIGHTS =The original application, in O.A.No.514 of 2011, in C.S.No.408 of 2011, had been filed praying that this Court may be pleased to grant an order of ad-interim injunction restraining the defendant, its directors, employees, officers, servants, agents, men, representatives and all others acting for and on their behalf, from making, selling, distributing, advertising, exporting, importing, offering for sale and in any other manner, directly or indirectly, dealing in pharmaceuticals or any chemical compound product that infringes the subject matter of Indian Patent No.196774, registered by the plaintiffs, pending disposal of the suit. = the appellants are based in Switzerland and the U.S.A. and the respondent is based in Ahmedabad, Gujarat. It is clear that this Court would not have the territorial jurisdiction to hear the suit filed by the appellants, in C.S.No.408 of 2011, only based on the claim of the appellants that a single sale of the infringing product had taken place, at Chennai. It is also seen that Vitman Pharma Limited, said to be the stockist/distributor/agent of the respondent in the present appeals had not been impleaded as a party to the suit, in C.S.No.408 of 2011, filed by the appellants. As such the suit filed by the appellants is bad in the eye of law for the non-joinder of the necessary party, as per Section 109 of the Patents Act, 1970. Even though certain rights have been conferred upon the patentee, under Section 48 of the Patents Act, 1970, the appellants in the present appeals have not been in a position to show that the respondent had infringed the patent right vested in the appellants, by showing sufficient evidence. The plaintiffs in the suit, in C.S.No.408 of 2011, who are the appellants in the present appeals, had not averred in the plaint that the defendant therein was carrying on the business dealing with the product in question, within the territorial jurisdiction of this Court. The learned single Judge had rightly found that the pleadings in the suit do not disclose any cause of action for the filing of the suit before this Court. Relying on the decision, in Dhodha House Vs. S.K.Maingi, (2006) 9 SCC 41, the learned single Judge had rejected the claims made on behalf of the appellants herein, who were the plaintiffs in the suit, in C.S.No.408 of 2011. In such circumstances, we are of the considered view that the present Original Side Appeals, filed by the appellants, are devoid of merits and hence, they are liable to be dismissed. Accordingly, they stand dismissed. No costs.

  IN THE HIGH COURT OF JUDICATURE AT MADRAS       DATED: -4-2013   CORAM   THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH   O.S.A.Nos.36 and 37 of 2012   O.S.A.No.36 of 2012   F.Hoffmann-La Roche Ltd Group Headquarter Grenzacherstrassee 124 CH-4070 Basel Switzerland Represented by its constituted attorney Ms.Sujatha Subramaniam   … Continue reading

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