Delhi High Court bars Glenmark from selling two anti-diabetes drugs

Pharma major Glenmark Pharamceuticals was barred by the Delhi High Court (HC) on Friday from making, marketing or selling its anti-diabetes medicines on the ground that it had prima facie infringed the patent of US drug giant Merck Sharp and Dohme (MSD).

A Bench of Justices S. Ravindra Bhat and Najmi Waziri, while granting an interim injunction in favour of MSD, also said that the price difference between the drugs of the two companies is not so startling as to compel the court to infer that allowing Glenmark to sell the drug at depressed prices would result in increased access.

Glenmark's medicines, Zita and Zita-Met, cost 30 per cent less than MSD's Januvia and Janumet, which is due to the customs duty paid by the US firm, the court said adding no allegation has been made that MSD on Friday sells its drugs at a relatively high price that hinders access to the drug.

"In the present case, given the size of the diabetes drug market in India and the sheer number of patients from all economic strata of society, demand for low-priced medicines will remain, rather than any distortion of demand, due to brand loyalty or a first mover's advantage to MSD," the HC said.

"A strong case can in some instances offset an equal balance of conveniences between parties. In this case, MSD has established a prima facie case of infringement."

The Bench, however, allowed Glenmark to to sell the products in question which are already in the market (i.e. with its distributors, retailers, etc.).

The HC also directed Glenmark to give a true and correct account of all stock of its antidiabetes drugs in its factory as well as those which are in the market and permitted to be sold.

The court also directed Glenmark to undertake to pay such damages, if any, which may be decided by the court if the ultimate result of the suit is a decree in favour of MSD.