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2025 (12) TMI 106
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....sion of India (hereinafter referred to as the "CCI") on 25.10.2022 in Case No. 5 of 2022. 2. It is submitted that the appellant herein is a CEO of hospital providing free dialysis services to patients on behalf of the Government through a Private Pubic Partnership under Pradhan Mantri National Dialysis Programme (PMNDP). It is submitted that it is common for the patients under dialysis to develop Iron Deficiency Anaemia (hereinafter referred to as the "IDA") and the deficiency of IDA in children is 67% and women is 59% as per National Family Health Survey-5 of 2019-21, and that injection referred as Ferric Carboxymaltose ("FCM") injection is available for treatment of IDA. 3. It is the allegation of the appellant that due to anti-competitive and abusive conduct of Vifor International (AG), Switzerland who is the Respondent No. 2 herein, the FCM injections are neither accessible nor affordable by patients/consumers at large. The appellant had filed information with the Respondent No. 1, the Competition Commission of India on 12.01.2022 regarding anti-competitive conduct and abuse of its dominant position, in violation of Section 3 and 4 of the Competition Act, 2002, by the Res....
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....n expiry. There is also no restriction that Vifor cannot enter into more licensing arrangements should it want. Also, the termination clause contained in such agreements do not appear to be prima facie erroneous on the two licensees so as to place them at any disadvantageous position in the bargain. Another significant aspect that has weighed with the Commission is that the patent granted to Vifor in respect of its soluble FCM iron Fair Competition For Grester Good injectables is said to expire in the year 2023 and it is expected that the patented FCM should then be available for free exploitation by interested parties. 77. As regards the price discrimination alleged by the Informant, the Commission observes that all price differentiations may not be discriminatory, more so when the same is based on reasonable classification of consumers to which they are offered. Prices offered in government procurement may not be comparable with the products being sold in open market on quantity criteria (bulk vs. individual buying) as well as purpose (public purpose or distribution free of cost vs private consumption). As regards pricing of FCM injectable in another country i.e. Banglad....
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....FCM injection manufactured by Emcure Pharmaceutical Ltd. and the one imported and distributed by Lupin Ltd. has the same composition, though branding was different. It was submitted that limited production of FCM violated Section 4(2) of the Act. 6. In its notes of submissions dated 15.03.2024, the Respondent No. 2 has submitted that the appellant is a CEO of a hospital, namely, Eskag Sanjeevani Multispeciality Hospital which is one of the units of Eskag Sanjeevani Private Limited a group company of an entity known as West Bengal Chemical Industries Limited ("WBCIL") based in Kolkata and Respondent No. 2 is a Swiss pharmaceutical company which has no office and place of business in India. The Respondent No. 2 has developed a molecule known as Ferric Carboxymaltose (FCM) which is the active pharmaceutical ingredient used for manufacturing injectables for treatment of iron deficiency anaemia. The Respondent No. 2 had been granted a patent on the said drug (FCM) on 25.06.2008. However, the said patent has expired on 21.10.2023 and FCM has passed into public domain and is available for free exploitation by interested parties and consumers pan-India. 6.1. The Learned Counsel for t....
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....ot been satisfied, or (b) that the patented invention is not available to the public at a reasonably affordable price, or (c) that the patented invention is not worked in the territory of India. (2) An application under this section may be made by any person notwithstanding that he is already the holder of a licence under the patent and no person shall be estopped from alleging that the reasonable requirements of the public with respect to the patented invention are not satisfied or that the patented invention is not worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price by reason of any admission made by him, whether in such a licence or otherwise or by reason of his having accepted such a licence. (3) Every application under sub-section (1) shall contain a statement setting out the nature of the applicant's interest together with such particulars as may be prescribed and the facts upon which the application is based. (4) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or....
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....time being in force relating to the protection of other intellectual property rights;" 6.3 The Respondent No. 2 has challenged the jurisdiction of CCI and stated that since the molecule is governed by the Patent Act, CCI has no jurisdiction to consider the issue raised by the appellant. It was submitted that the appellant has approached the CCI with unclean hands and similar issues were raised before the Hon'ble Delhi High Court. The Respondent No. 2 has prayed that the present appeal be dismissed on the following grounds; a. The patent has expired; b. Non-maintainability of the present Appeal; c. Appellant has approached this Hon'ble Tribunal with unclean hands; and d. No case has been made out against the Respondent No.2 as per the Impugned Order. 7. In its notes of submissions dated 14.08.2025, the Respondent No. 1/CCI has submitted as under: "The CCI examined the matter within the jurisdictional confines of CCI as given under the provisions of the Competition Act, 2002, and after finding no prima facie case, CCI closed the matter vide order dated 25.10.2022. While examining the case, CCI referred the judgment dated 20.05.20....
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....e of dominant position is not one that is reserved for the CCI. To the contrary, the factors that the CCI is required to consider under Sections 19(3) and 19(4) when assessing a potential, violation of Section 3 or Section 4 of the Competition Act are not very different from those that the Controller, in exercise of power to grant a compulsory licence, will consider in terms of Sections 84(6) and 84(7), especially when read with Sections 83 and 89 of the Patents Act. 49. In our view, the inquiry that the CCI proposes to conduct in respect of an assertion of patent rights is nearly identical to that which the Controller will conduct under Chapter XVI of the Patents Act. The legislative intent is apparent in that the Patents Act - especially as amended by the 2003 Amendment that introduced Chapter XVI after the Competition Act was enacted. It is especially for the field pertaining to patents, unreasonable conditions in agreements of licensing, abuse of status as a patentee, inquiry in respect thereof and relief that is to be granted therefor are all to be governed by the Patents Act. 50. In our view, the Competition Act is a general legislation pertaining to anti-co....
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....r the Patents Act. Even assessed by the rigours of Ashoka Mktg. Ltd. cases, which require the conflict to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein, the Patents Act must necessarily prevail. over that of the Competition Act. 56. For this reason, in our view, LPA Nos. 246 of 2016, 247 of 2016, 150 of 2020, 550 of 2016 and WP(C) No. 8379 of 2015 ought to be and are allowed. The 2016 judgment in Ericsson AB v. CCI and. 2020 judgment in Monsanto Holdings (P) Ltd. v. CCT are set aside. The proceedings initiated by the CCI, that are impugned in the said appeals/petitions are hereby quashed. 57. This judgment, of course, must not be understood as expressing any opinion on the merits of the claims of any of the parties as to whether Erlesson or Monsanto have, in fact, Imposed anti-competitive conditions, or abused their dominant position. 58. For the above reasons, the 2015 judgment in Ericsson AB v. CCT is sustained. The CCI's proceedings deserve to be quashed for want of power. The court is of the view that once a settlement has been r....