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Infringement of patent - Lawyers of Pakistan

Infringement of patent

Citation Name : 2014 CLD 1125 KARACHI-HIGH-COURT-SINDH
Side Appellant : SANOFI-SYNTHELABO
Side Opponent : ZAFA PHARMACEUTICAL LABORATORIES (PRIVATE) LIMITED
S. 11---Patents Ordinance (LXI of 2000), S.29---Infringement of patent---Suit for perpetual injunction to restrain such infringement---Term of patent expired---Original jurisdiction of High Court---abatement , concept of---Effect on pending proceedings---Plaintiff had sought relief to the effect that defendant, be prohibited to sell "Clopidogrel" in addition to any other pharmaceutical ingredients/element or compound---Contention of the defendant was that the plaintiff had no cause of action, as the term of patent of the plaintiff had already expired and allegation of infringement of the patent levelled against the defendant was prima facie without any evidence---Validity---Suit became infructuous in the month of May, 2014---On the instruction of the plaintiff, counsel for the plaintiff stated that instructions had been taken from the plaintiff and since the term of the patent shall, in any case, expire by the end of May, 2014, therefore, suit itself shall be withdrawn---Suit had become infructuous and no purpose could be achieved by any of the parties by keeping this matter pending in court without any reason, therefore, the suit could not be kept pending and was required to be disposed of in pursuance of the 'concept of abatement '---Suit of the plaintiff was disposed of as having become infructuous along with applications.


Citation Name : 2013 PLD 364 SUPREME-COURT
Side Appellant : Syed MEHMOOD ALI SHAH
Side Opponent : ZULFIQAR ALI
S. 12(2)---Punjab Pre-emption Act (I of 1913), S.21---Constitution of Pakistan, Art.185(3)---Fraud---Property acquired by pre-emptor through consent of vendee---Pre-emptor selling such property to purchasers---Pre-emptor after having sold the property, giving his consent to a decree in a suit, which affected rights of purchasers qua the property---Effect---Fraud committed by pre-emptor upon purchaser---Scope---abatement of pre-emption suits filed under the Punjab Pre-emption Act, 1913 in view of the judgment of Supreme Court in the case of N-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360)---Scope---Pre-emptors filed separate suits for possession through pre-emption against vendee---Suit of first pre-emptor was decreed on account of consent of vendee, and having acquired ownership of the suit property, he further sold it to the purchasers (respondents)---Second pre-emptor after seeking amendment in his plaint challenged consent decree passed in favour of first pre-emptor---During pendency of second pre-emptors' suit Punjab Pre-emption Act, 1913 was declared as ultra vires to Injunctions of Islam and all pending pre-emption suits in which a decree of pre-emption had not been passed in favour of pre-emptor by 31st July, 1986 stood abated---Trial Court instead of dismissing suit of second pre-emptor as having abated, kept the matter pending, and when vendee and first pre-emptor conceded to claim of second pre-emptor, his suit was decreed---Aggrieved of such decree, purchasers filed applications under S.12(2), C.P.C contending that they were the owners of suit property that had been purchased by them from the first pre-emptor, and that vendee and first pre-emptor had no right to give consent in favour of second pre-emptor's decree--- Validity---Supreme Court categorically held in the case of N-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) that all suits, appeals etc. pending adjudication on 31st July 1986 in which a decree for pre-emption had not been passed in favour of pre-emptor by the said date, stood abated, meaning thereby, that all such cases were terminated, stood annulled and the very existence of the cases came to an end by the operation of law---Such command of the law had to take effect ipso jure, without recourse to anything else, therefore, no valid suit on behalf of second pre-emptor could be deemed in law to be pending before the court, in respect of which it could exercise jurisdiction---Even if the vendee and first pre-emptor had given their consent, suit of second pre-emptor stood abated in view of the said judgment of Supreme Court, since such consent was likely to affect rights of persons who were not part thereto---Decree passed in favour of second pre-emptor was void, even if it was a consent decree--- Besides first pre-emptor had sold the suit property in favour of purchasers and thus was left with no right or interest in such property, therefore, he could not give consent to deprive the purchasers of their lawful right to the property--- Purchasers purchased suit property from first pre-emptor for valuable consideration on basis of consent decree passed in favour of the latter (before repeal of Punjab Pre-emption Act, 1913), therefore their rights could not be obliterated---Vendee was also in no position to give his consent, having consented to the decree in favour of first pre-emptor---Fraud was obvious in the present case, played by both pre-emptors upon the purchasers---Petition for leave to appeal was refused accordingly.

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