Roche beats Cipla at Delhi High Court

The court reached at the conclusion by noting that Cipla’s lung cancer medicine, Erlocip, was one polymorphic form of the erlotinib hydrochloride compound, which may exist in several forms, and Roche’s patent claim was not limited to any one such version.

A bench of justices Pradeep Nandrajog and Mukta Gupta said, “This (the patent) is a sufficiently broad claim that is clearly not limited to any polymorphic version of erlotinib hydrochloride, but to erlotinib hydrochloride itself. This compound may exist in several polymorphic forms, but any and all such forms will be subsumed within this patent. Therefore as Cipla’s Erlocip is admittedly one particular polymorphic form of the erlotinib hydrochloride compound (polymorph B), it will clearly infringe the IN 774 patent (of Roche).”

It said, “We thus conclude this issue by noting that the single judge’s finding that ‘Tarceva’ and ‘Erlocip’ were based on the polymorph B version of erlotinib hydrochloride, though correct factually, is irrelevant to the subject matter of the present patent as Cipla has clearly infringed Claim 1 of Roche’s IN 774 patent in arriving at the said polymorph.”

It also didn’t grant any injunction in favour of Roche by restraining Cipla, saying the patent in favour of the Swiss firm would expire in March 2016 and no such order had been passed by the single-judge and the Indian firm had continued to make and sell Erlocip.