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2013 (4) TMI 235 - HC - Companies LawRestraining infringement of patent - pharmaceutical composition - Held that:- if the infringing product are made with the same object in view which is attained by the patented article, then a minor variation does not mean that there is no infringement. Trifling and unessential variations are to be ignored. Conversely, a miniscule advancement could be recognized as an invention. The defendant pointed out that the patent of the plaintiff Merck was not in the pharmaceutical composition as described on plaintiff‟s product but only in a part thereof and which fact was not denied by the plaintiff. Thus, similarity of pharmaceutical composition of the products cannot be a ground for infringement. It has emerged that the plaintiff Merck itself has in USA taken an independent patent for Sitagliptin Phosphate and similarly applied in India and which has been rejected and while applying for independent patent in Sitagliptin Phosphate in USA, India and Europe having claimed it to be a new invention and a different product than SITAGLIPTIN. Whether in the absence of the plaintiff having pleaded so, can interim relief be granted on the basis of such explanation. The answer has to be an emphatic no. - plaintiffs have not made out a case for grant of interim relief. - The application is accordingly dismissed but with a direction to the defendant to diligently maintain accounts of the manufacture/production and sales of the infringing products and to file the same every quarter before this Court with advance copy to the counsel for the plaintiffs.
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