IN THE HIGH COURT OF DELHI AT NEW DELHI

(Ordinary Original Civil Jurisdiction)

C.S. (O.S.) 2475 of 2012

IN THE MATTER OF:

Natco Pharma Ltd. Plaintiff

Versus

Shamnad Basheer Defendant

S. No. Particulars Pages

1. Written Statement on behalf of the Defendant,

along with affidavit in support

New Delhi TMT LAW PRACTICE

Date: September 29, 2012 Advocates for the Defendant
C-2/39, Safdarjung Development Area,
New Delhi-110016
Phone 011 41682996
+919899597359
 IN THE HIGH COURT OF DELHI AT NEW DELHI

(Ordinary Original Civil Jurisdiction)

C.S. (O.S.) 2475 of 2012

IN THE MATTER OF:

Natco Pharma Ltd. Plaintiff

Versus

Shamnad Basheer Defendant

WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT

THE DEFENDANT MOST RESPECTFULLY SUBMITS AS UNDER:

PRELIMINARY OBJECTIONS:

1. It is stated that the instant plaint is liable to be returned in

accordance with the provisions of Order VII Rule 10 of the Code of

Civil Procedure, 1908, as this Honble Court is not clothed with the

jurisdiction to try and entertain the instant suit. Admittedly, the

Defendant resides & works for gain at Kolkata, whereas the Plaintiff

is admittedly carrying on business in Hyderabad through its

registered office. It is stated that the cause of action does not arise

within the territorial jurisdiction of this Honble Court as the

impugned article were not published within Delhi. Furthermore, it is

respectfully submitted that given that the subject / impugned

articles were only carried on the website

[Link], accordingly the stated articles were

not published within the territorial limits of this Honble Court. It is

settled law that mere access to a website does not give rise to a

actionable claim under tort law. It is submitted that this proposition

has been settled by a Division Bench of this Honble High Court. The

website in question namely [Link] is an

online publication and does not specifically target Delhi and

consequently the Defendant cannot be said to have purposefully

availed himself of the Jurisdiction of this Honble Court by

specifically targeting the territory of Delhi and by that extension the

Jurisdiction of this Honble Court. It is stated that the Defendant

residing at Kolkata uploaded the article on the Internet at Kolkata.

2. It is stated that additionally the plaint is fatally flawed from a

lack of material particulars disclosing a cause of action and is

accordingly liable to be rejected on this ground alone. Respectfully

and without prejudice to the Defendants assertion of jurisdiction, it

is stated that the plaint fails to disclose the publication of the

impugned articles within Delhi as is required by settled law. It is

noteworthy that the plaint does not disclose who or which person or

persons downloaded the articles at Delhi, read the same and

expressed shock at reports allowing the Plaintiff to claim that the

said defamation occurred in Delhi. The Plaintiff is therefore liable to

be rejected on this ground also.

3. It is stated that the Plaintiff has singularly failed to discharge

the burden cast by the Indian Evidence Act. The Defendant reserves

its right to file a separate application under Order VII Rule 10 of the

Code of Civil Procedure, 1908 seeking return/rejection of the plaint.

4. Additionally, the Plaintiffs assertion that the mere fact that

the suit C.S. (O.S.) No.2279 of 2009 (BMS Suit) is pending

before this Honble Court confers jurisdiction on the court has to be

rejected outright for the following reasons:

A. The said argument is not a ground available under the

Code of Civil Procedure, 1908 for a Court to assume

jurisdiction in respect of any suit.

 B. The present defendant is not a party to the said BMS suit.

C. Further, the Plaintiff itself has stated that the present suit

is not connected in any manner with the BMS Suit and has

an independent cause of action.

The Plaintiff itself has challenged the jurisdiction of this Honble

Court in paragraph 6 of its written statement in the BMS Suit. It is

stated that the Plaintiffs statements are starkly contradictory with

its stand in CS (OS) 2279/2009, wherein it claimed that the Honble

Court cannot exercise Jurisdiction as the Plaintiff (a) does have an

office at Delhi and (b) does not carry on business at Delhi. The

Plaintiffs contradictory statements reek of mala fide and reveal its

propensity to engage in duplicity with a view to prevailing in court

proceedings at any cost.

5. It is stated that the instant suit has not been instituted by a

person duly authorized by the Plaintiff Company and is accordingly

liable to be dismissed. It is respectfully stated that since the claim

of defamation is predicated upon a claim that the Company stands

defamed by the impugned articles, it is even more critical that the

Company should at the outset have authorized the institution of the

plaint. A perusal of the Resolution of the Board of Directors of the

Plaintiff Company of Company shows that the signatory of the plaint

in the instant suit was not authorized to institute the instant suit

before this Honble Court. It is stated that the signatory acting on

behalf of the Plaintiff is merely authorized to represent the Plaintiff

Company and sign and verify pleadings, affidavits petitions etc., and

not to institute law suits on behalf of the Plaintiff.

6. It is further submitted that the present suit is bad for non-

joinder of necessary parties. The Plaintiff alleges that the Defendant

colluded with Bristol Myers Squib, Inc., to publish the allegedly

defamatory posts on the website, [Link] (SpicyIP).

However, the Plaintiff has failed to make Bristol Myers Squib as a

party to the present suit. It is also submitted that the Plaintiff claims

that the Defendants allegedly defamatory statements were

published in the Economic Times, a Times of India publication. Here

again, the Plaintiff has failed to make the Times of India/ Economic

Times a party to the present suit. It is submitted that the present

suit, as framed cannot be adjudicated without making the said party

as a Defendant to the suit, as the prayers of the Plaintiff cannot be

granted without these necessary parties. Hence, the present suit is

liable to be dismissed in limine on this ground alone.

7. It is further submitted that the plaint is liable to be rejected

under Order VII Rule 11 of the Code of Civil Procedure, 1908 as it

fails to disclose a cause of action against the Defendant. Apart from

merely reproducing the various statements of the Defendant in the

two impugned articles on SpicyIP, the Plaintiff has not made any

attempt to demonstrate the falsity of these statements. Nowhere in

the suit does the Plaintiff disclose as to why the impugned

statements are obviously false or untrue or not based on facts or

not representative of a fair comment on an existing set of facts. .

8. It is stated that the impugned statements made by the

Defendant are justified being in the nature of Fair Comment as is

apparent from the following paragraphs:

(i). The present case is one where an allegation is

made that the Defendant has written and posted on

SpicyIP, allegedly defamatory statements/comments (set

out in paragraphs 9, 10 and 12 of the plaint). The said

statements are not being reproduced herein for the sake

of brevity.

(ii) Admittedly, SpicyIP is a website, which is

academically oriented and caters to those interested in

Intellectual Property law and policy. This website was

founded by the Defendant in 2005, and has received

accolades since then for its in-depth and independent

coverage of Indian intellectual property issues. Notably, a

leading intellectual property magazine, Managing

Intellectual Property (MIP) rated SpicyIP as one amongst

the 50 leading IP personalities the world over in the year

2011-2012 (Managing Intellectual Property, Shaping the

future of IP: Top 50, dated 13 June 2011.) A copy of the

stated listing is filed in the proceedings and relied upon.

The Defendant himself is an internationally reputed

academic and leading commentator on Indian intellectual

property issues.

(iii). The Defendant is currently the HRD Ministry

Chaired Professor in Intellectual Property Law, West

Bengal National University of Juridical Sciences (NUJS),

Kolkata. Prior to this, he had been the Frank H Marks

Visiting Associate Professor of IP Law at the George

Washington University in Washington D.C. and also a

research associate at the Oxford Intellectual Property

Research Centre (OIPRC) at the University of Oxford. He is

the founder of several initiatives including the following:

1. IDIA (Increasing Diversity by Increasing Access to

Education), a pan-India student movement to promote

access to legal education in favour of underprivileged

students.

2. P-PIL (Promoting Public Interest Lawyering), a forum

that brings law students and lawyers together to achieve

shared public interest goals through the instrumentality of

the law.

He is also regularly consulted by the government and has

deposed before Parliamentary Committees on a variety of

IP issues. He has had a distinguished career in both

practice and academia, both in India and abroad and his

scholarly articles published in reputed international IP

journals are routinely cited. He has many laurels and

distinctions to his credit, a list whereof is set out in the

curriculum vitae, which is filed with this written statement.

His profile as appearing on the website of his University

(National University of Juridical Sciences) is also filed

herewith. The Defendant further submits that he has been

allowed by the Honble Supreme Court to intervene in the

proceedings concerning Novartis v. Union of India & Ors.,

SLP (c) Nos.20539-20549/2009 as an academic expert on

the subject by way of its Order dated 09.08.2012. A copy

of the order-dated 09.08.2012 is filed in the instant

proceedings and relied upon. The Honble Supreme Court

is presently hearing arguments in the said matter.

(iv). Accordingly, on the issue at hand and any other

IP issue of specific importance to India, the Defendant is

eminently qualified and well placed to offer a fair

comment. In making such a fair and objective comment

on the Plaintiffs conduct, the Defendant is exercising his

constitutionally guaranteed right to free speech.

It is submitted that the present suit is accordingly liable to

be dismissed in limine.

(v). A perusal of the articles/posts in which the

allegedly defamatory statements appear makes it

abundantly clear that these statements are fair, well-

reasoned and analytical comments, made without malice

and based on facts found inter-alia in the very same

pleadings filed by Natco in the BMS Suit.

(vi). It is stated that the subject matter of the BMS

Suit is one of a high degree of public interest and concern

to the general public as it involves issues of not only

patent law and access to affordable medicines, but also of

an allegedly weak drug regulatory regime and issues of

drug patent linkage. The allegedly defamatory articles

categorically record the following facts:

a. That a civil suit numbered as C.S. (O.S.) No. 2279

of 2009 had been filed against the Plaintiff herein by

Bristol Myers Squib, Inc. (BMS), a pharmaceutical

company that owns patent No.203937 in respect of

an anti-cancer pharmaceutical drug known as

DASATINIB. BMS alleged that Natco i.e. the

Plaintiff herein had a pending drug marketing

license with the DCGI and intended to launch a

generic version of BMSs drug under the name

DASANAT, thereby infringing BMS patented

invention.

b. In the BMS Suit, BMS prayed for a restraining order

in a quia timet action, as BMS apprehended that the

 Plaintiff herein was likely to launch the allegedly

infringing drug, given that it had filed an application

for marketing approval with the office of the Drug

Controller General of India (DCGI).

c. That the Plaintiff herein, in its written statement

filed in the BMS Suit, responded to the above quia

timet action by categorically stating that it had no

intention of launching a generic version of

Dasatinib. Specifically, the Plaintiff herein stated in

paragraph 29 of its written statement that it does

not intend to launch a generic version of

DASATINIB under the brand name DASANAT. It

further denied in paragraph 23 that the

Defendants have been advertising their generic

version of DASATINIB under the brand name

DASANAT. No such product is available with these

Defendants.

d. That contrary to the above assertions, Natco

admittedly launched, in May-June, 2012, a generic

version of DASATINIB, known as DASANAT.

e. That further to an application for injunction filed by

BMS in June 11, 2012, a co-ordinate bench of this

Honble Court, by way of its Order dated 13.6.2012

directed the Plaintiff herein as follows: The

Defendant shall be bound by their statement taken

by them in their written statement, particularly in

paras 26, 27 and 29. It is noteworthy that

paragraph 29 of the written statement of the

Plaintiffs written statement encapsulates a

categorical statement that It is denied that the

 Defendants intend to launch a generic version of

Dasatinib under the name Dasanat.

f. That, in response to an injunction application filed

by BMS on June 21, 2012, the Plaintiff admitted

that it had an application for marketing approval for

a generic version of Dasatinib, pending before the

DCGI at the time that its written statement was

filed in 2009. Specifically, paragraph 6 of the

Plaintiffs submission to the court notes: it is

submitted that the suit filed by the Plaintiffs was

itself premature in that it was filed when the

Defendant had only applied for marketing license

which activity is permissible in law. However, far

from disclosing the filing of such application for

marketing license in its written submission filed in

2009, the Plaintiff herein specifically denied that it

had any intention of launching a generic version of

DASANITIB under the mark DASANAT.

9. Based upon the above facts recorded in the articles in

question, the Defendant went on to take a view and offered his

opinion by way of fair comment, that it was imprudent of the

Plaintiff herein to have misled the court and denied any intention of

launching the drug, particularly when it had a pending drug

marketing application with the Drug Controller General of India

(DCGI) at that very moment. Specifically, the Defendant noted in

his articles as below:

In a startling revelation, Natco admitted (albeit

indirectly) that it had lied in its response to BMS's
quia timet law suit, wherein BMS approached the
Delhi High Court in 2009, apprehending imminent
infringement of its patent covering Dasatinib, an anti
cancer drug.

In an earlier post, I noted that Natco may have

committed a fatal legal blunder by stating on oath
before the Delhi High court that:

"It is denied that the Defendants intend to launch a

generic version of Dasatinib under the name
Dasanat." (paragraph 27 of the Natco written
statement).

I also noted that in the light of the fact that Natco

went on to launch a generic version of Dasatinib under
the name Dasanat in June 2012, its statement on oath
effectively amounted to a blatant falsehood. As to
whether or not this amounts to perjury under Section
340 of the CRPC is contentious. However it reeks of
bad faith and is likely to prove prejudicial for Natco

In a filing before the Delhi High Court yesterday,

Natco admitted (albeit indirectly) that, at the time of
BMS' quia timet action in 2009, Natco was actively
pursuing a marketing application with the drug
controllers' office (DCGI). I extract from its
submission (paragraph 6):

it is submitted that the suit filed by the Plaintiffs was

itself premature in that it was filed when the
Defendant had only applied for marketing license
which activity is permissible in law."

In other words, given that Natco was actively

pursuing a marketing license for Dasatinib before the
regulator, its assertion that it had no intention of
launching a generic version of Dasatinib was blatantly
untrue. This damning admission is likely to prove
prejudicial to Natco, not only in terms of it being seen
as a bad faith litigant that took the court for a ride,
but also in terms of its potential to be condemned as a
contemnor.
 No doubt, Natco was well within its rights to pursue a
drug regulatory application before the Drug Controller,
and our law makes it amply clear that the drug
regulatory process is separate and distinct from the
patent process and patent infringement claims cannot
be used to hinder the drug regulatory process in any
way. Why then did Natco have to vacuously claim that
it had no intention of making the drug or launching it?
It should have simply asserted its right to pursue a
drug regulatory application without fear of patent
infringement and gone on to claim that the patent was
invalid.

I am still at a deep loss to understand as to why a

legally savvy corporate such as Natco dug its own
grave by making such an obviously false statement to
a court. Was this negligence? Or did it have anything
to do with our less than optimal regulatory structure
and Natco's desire to avoid sensitising our court or
any of us to potential malfeasance/misfeasance on the
regulatory front. One hopes to find answers in the
days to come.
This strong charge of bad faith and contempt may not
impact the final outcome on the merits of the matter
i.e. as to whether or not the patent is valid and as to
whether or not Natco infringes. However, it is certain
to impact Natco's reputation as a litigant, owing to the
court seeing Natco as a bad faith litigant and
contemnor.

The above statements make it amply clear that the Defendant

expressed an independent academic view that was based on facts

culled out from the very same pleadings filed by the Plaintiff. It is

clear that the comments were fair, based upon facts, entirely of an

academic nature and with no malice towards the Plaintiff herein,

particularly since the Defendant has in the past, lavished praise on

the Plaintiff herein for its bold compulsory licensing strategy, an

aspect detailed in subsequent paragraphs of this written statement.

10. It is noteworthy that apart from highlighting the Plaintiffs

blatant misrepresentation to a court of law, the Defendants articles

discuss various other issues pertinent to the legal fight between

BMS and the Plaintiff, including drug regulatory issues and the

exploitation of drug regulatory loopholes by pharmaceutical

companies an aspect highlighted in a recent report of the

Department-Related Parliamentary Standing Committee On Health

And Family Welfare, titled Fifty- Ninth Report On The Functioning Of

The Central Drugs Standard Control Organisation (CDSCO), dated

May 2012. In pertinent part the impugned article notes:

Apart from all of the above, this case is an interesting

one to me personally, since I've begun looking more

closely at our drug regulatory regime. The following

questions arise:

1. What kind of license did Natco apply for (from the

DCGI office) in 2009? Was this an application for

permission to import, export or to manufacture and

sell in India?

2. Did Natco finally procure this permission from the

DCGI? If not, what accounts for the ensuing delay?

Could it be that Natco failed to comply with DCGI pre-

requisites for information and data/testing? Or worse

still, could it be that that the DCGI deliberately

delayed permission to Natco in a bid to erect a trade

barrier? Or just that the DCGI is terribly understaffed

and takes significant time to clear a single application,

as noted in this damning Parliamentary committee

report.
The articles are thus, balanced with regard to the issues presented

and opinion accorded, based solely on facts found in the pleadings

of the parties in the BMS suit and the orders passed therein. It is

accordingly stated that all of the said statements/opinion appearing

in the impugned article/s are based on the pleadings and orders,

which are a matter of record and hence are protectable as fair

comment, in accordance with settled law, both in India as also other

common law jurisdictions such as the UK. In fact it is noteworthy

that this Honble Court has issued show cause notice, on the

Contempt Petition filed, to the Plaintiff herein in the BMS Patent

suit.

11. It is clear that the Defendant exercised due care and caution

by examining the pleadings of the parties in the BMS Suit prior to

expressing his views on the case and the conduct of the Plaintiff. His

analysis and commentary turned significantly on the Plaintiffs

undertaking to the Court by way of its Written Statement, which is

reflected in the Order of Honble Single judge, dated 13.6.2012. At

no stage did the Defendant make any statement about the Plaintiffs

general conduct not concerned with the case or exhibit any malice

towards the Defendant. The Defendant asserts his right as an

academic and a citizen of India to make fair comments on legal

disputes, in keeping with the spirit of fundamental guarantees under

Articles 19 and 21 of the Constitution of India.

12. It is further pertinent to mention that the issue at hand is one

of public interest since, as stated in the article appearing on SpicyIP

on 31.07.2012, the Plaintiff is the first successful company to have

been awarded a compulsory license by the Controller General of

Patents after the TRIPs regime came into being. This effectively
places the Plaintiff at the forefront of the patent battle between drug

originator companies and generic medicine companies, a battle that

throws into sharp focus issues of pharmaceutical patents, drug

regulation, innovation, access to medicines and public health.

Countless articles and media reports on the above issues have been

written and continue to be written. Hence, such legal disputes and

the attendant conduct and litigation strategy of the parties is very

much a matter of public interest.

13. It is also submitted that the dispute that is the subject matter

of the BMS Suit was already in the mainstream media and public

eye well before the Defendant wrote about it in SpicyIP. An article in

the Economic Times dated July 13, 2012 had alerted readers to the

various regulatory issues inherent in the regulatory approval

obtained by Natco from the Uttarkhand state regulatory authority.

The news item noted in particular as below:

Hyderabad-based generic drugmaker Natco Pharma

has started selling copies of global pharma major

Bristol Myers Squibb's cancer drug Dasatinib, sold

under the brand name of Sprycel, in the Indian

market, after it got a marketing licence from the

Uttarakhand government to sell a generic version of

the drug. The move is sure to kick off a fresh

controversy in the regulatory framework over patent

issues.

In the past, drug companies have approached the

Drug Controller General of India (DCGI) to obtain

manufacturing licences for selling drugs in the

country. However, this is one of the rarest of rare

 case, where a drug maker has applied for a licence of

a patented product through a state government.

A true copy of this News Report titled Natco Pharma begins sales of

Bristol Myers' cancer drug Dasatinib, dated July 13, 2012 is filed in

the proceedings and relied upon. When the above mentioned report

is viewed in light of the recent Parliamentary Standing Committee

Report highlighting a rigged regulatory regime routinely exploited

by drug companies, a copy of which report has been filed in the

proceedings and is relied upon, it is quite clear why there was high

public interest in this case.

14. It is also pertinent to note that it was the Defendant who

defended the Plaintiffs right to obtain approvals legitimately from a

State authority and he is quoted in the said news report as stating:

A patent expert said that Natco is well within its right to

obtain a licence from a state government to sell the drug in

the Indian markets. The regulators only job is to look at

safety and efficacy of drugs, and it is not obliged to look at

validity of patents, said Shamnad Basheer, professor in

Intellectual Property Law, National University of Judicial

Sciences.

15. It is stated that the above deliberate suppression of facts and

statements made in support of the Plaintiff by the Defendant in

respect of the merits of the controversy at issue in the BMS Suit is

indicative of Plaintiffs mala fide intentions. The Plaintiff is disentitled

to relief on the ground of this suppression alone. The suppression

becomes relevant in the light of the Plaintiffs baseless allegations

that the Defendants articles are biased in favour of BMS. The fallacy
of the said allegation is amply demonstrated by the above

disclosures, which present the entire conspectus of the matter and

Defendants role as a neutral and academic commentator of drug

patent and regulatory issues. In this regard, the Defendant wishes

to vehemently object to and reject the Plaintiffs baseless allegation

that the Defendant colluded with BMS with a view to assisting BMS

in the case. In fact, a perusal of the very same articles that the

Plaintiff labels as allegedly defamatory demonstrates that the

Defendant also criticized the conduct of BMS in the very same

proceedings. In pertinent part, his article on the SpicyIP website

dated 2 August, 2012 notes:

More worrying than Natco's fatal legal blunder is

BMS' alleged attempt to sneak in drug patent linkage,

despite our courts holding such linkage to have no

valid legal basis in India. Natco alleges that BMS was

behind a showcause issued by the Uttarakhand drug

regulator to divest Natco of its regulatory approval.

Natco notes in paragraph 13 of its filing that:

A perusal of the show cause notice dated 20.06.2012

clearly reveals that the notice was issued at the

behest of the Plaintiff. Further, the drug licensing

authority had issued a letter suspending the license of

the defendants. This order was challenged in the High

Court of Uttarakhand and High court has passed an

order dated 25th July 2012, directing that the said

order (of suspicion of license) shall remain in

abeyance. The Honble High Court of Uttarakhand has

remanded the matter to the Drug Licensing authority,

 directing it to consider the reply of the defendant to

the show cause notice and to pass a reasoned and

speaking order after hearing the defendant.

Given that drug patent linkage has been held to have

no legal basis in India by both a single judge and an

appellate division bench of the Delhi High Court (and

effectively confirmed by the Supreme Court as well,

which refused to admit the appeal from the Division

Bench), BMS will have to answer to a serious charge

of bad faith, if Natco's allegations are indeed true.

The fact that the Plaintiff has chosen to conveniently ignore this part

of the Article, which reflects the truly independent nature of the

Defendants analysis and observations, demonstrates the Plaintiffs

mala fides. The Plaintiffs allegation of collusion is both baseless

and malicious, with a view to painting a negative picture of the

Defendant before the court. The Defendant reserves his right to

initiate appropriate proceedings against the Plaintiff on this count.

16. It is stated that Plaintiff itself seeks to actively court the

media from time to time and benefit from news reporting around its

successful litigations such as the Bayer Compulsory licensing

dispute. However, at the very same time, it attempts to crush and

quell any statement that exposes its misgivings in such patent

disputes. It is stated that the Plaintiff must open itself to critique, if

it choses to benefit from public attention on its various cases.

17. It is also noteworthy that SpicyIP articles deal intricately with

the various nuances of intellectual property issues, and the website

commands a sophisticated reader base including intellectual

property practitioners, academicians, researchers and other

professionals interested in Intellectual Property issues in India.

18. Thus, for the reasons set out above, it is submitted that the

present suit is liable to be dismissed in limine. The Defendant now

proceeds to answer the specific averments made in the plaint, all of

which are denied, unless specifically admitted to herein.

PARAWISE REPLY

1. The contents of paragraph 1 of the Plaint are denied. It is

denied that the defendant has published any defamatory or libelous

articles against the plaintiff in blogs, electronic media, newspapers

or at all. It is denied that the defendant has violated the sub-judice

rule and published articles, which are false, derogatory, defamatory,

reckless, and callous or have caused incalculable damage to the

plaintiff or as alleged at all.

2. The contents of paragraph 2 of the Plaint do not merit a

response. It is, however, denied that Mr. Jagbir Sharma is

authorized to file the present suit on behalf of the plaintiff or has

the entire knowledge of all the facts surrounding the controversy, as

alleged or at all. The remaining contents of the paragraph are

denied and the plaintiff is put to strict proof thereof.

3. The contents of paragraph 3 of the Plaint are denied. The

Defendant denies that he runs the blog, SpicyIP or that he

moderates or filters contents of the blog. The Plaintiff is put to

strict proof hereof. The Defendant states that the blog mainly caters

to an audience familiar with intellectual property concepts and not

to industry or professionals in general or to a substantial portion of

the public.

4. The contents of paragraph 4 of the Plaint are denied and the

plaintiff is put to strict proof thereof.

5. The contents of paragraph 5 of the Plaint are a matter of

record. However, the plaintiffs statement that The Plaintiff

company after much research has developed its own process for

preparing a polymorphic form of Dasatinib and same was sold by

the Plaintiff Company. The Plaintiff Company believes that the

product manufactured by it is different and not covered by Indian

Patent No. 203937 is denied and the Plaintiff is put to strict proof.

6. The contents of paragraph 6 and paragraph 7 of the Plaint are

a matter of record. The statement of the Plaintiff in paragraph 6

that no order of injunction was passed by the Court is denied. It is

noteworthy that Paragraph 29 of the written statement of the

Plaintiff in the BMS Suit filed in 2009, carries a categorical

statement that It is denied that the Defendants intend to launch a

generic version of Dasatinib under the name Dasanat. On June 13,

2012, in response to a temporary injunction application filed by BMS

alleging that the Plaintiff herein had introduced a generic version of

Dasatibin under the brand Dasanat in the market, the learned single

judge of the Delhi High Court, ordered Natco as follows: The

Defandant shall be bound by their statement taken by them in their

written statement, particularly in paras 26, 27 and 29. The very

fact that the Court directed the Plaintiff to be bound by the

averments made in its Written Statement indicates that it was

restrained from acting contrary to the undertakings made therein.

The Plaintiff itself admits in subsequent pleadings filed before this

court that it is effectively restrained by this Order. In paragraph 3 of

its reply dated August 12, 2012 to Bayers contempt petition, it

states that it is submitted that the product Dasanat was

manufactured and sold in May 2012. The first application for

injunction was filed only in June 2012. And thereafter this

Defendant has not manufactured any product nor acted against any

order of this Honourable Court; hence no case of contempt lies

against the Defendant.

7. The contents of paragraph 8 of the Plaint are denied in toto.

It is vehemently denied that the Defendant, in collusion with Bristol

Myers Squibb (BMS) published scathing or defamatory remarks on

SpicyIP (Website) with a view to malign and degrade the

reputation of the plaintiff or to cause prejudice to a fair, reasonable

trial or interfere with the interest of justice. It is denied that the

remarks in the articles of the defendant are derogatory or intended

to lower the image of the plaintiff in the eyes of the public or as

alleged at all. It is submitted that the Defendant has always been

neutral and independent and has criticized both Natco and BMS in

the very same article. Specifically, the Defendant took issue with

BMSs attempts to force drug patent linkage and revoke the

Plaintiffs drug manufacturing authorization in Uttarakhand. Further,

the Defendant, has in the past, criticized attempts by BMS to

effectuate drug patent linkage through its patent infringement suit

against another generic company, Hetero Drugs for the very same

patented drug (Dasatinib). Pertinently, the Defendant noted:

From a policy perspective too, any such

linkage is hugely problematic. Apart from

issues of institutional competence, such

linkage contravenes the very essence of

 the Bolar provision, a patent defence that

permits generic companies to safely

generate regulatory data while the patent

is in force and pursue their drug regulatory

application process, so that no time is lost

between the expiry of a patent and the

entry of a generic product in the market.

Such linkage also virtually results in the

introduction of a "data exclusivity" like

norm, a norm that a government

committee (Satwant Reddy Committee)

suggested, ought not to be introduced into

India at this stage.

A true copy of this post titled Breaking News: Court Orders Indian

Drug Controller to "Police" Patents, dated 6 January, 2009 is filed in

the instant proceedings and is relied upon. Therefore, the Plaintiffs

allegation of collusion reeks of malafides and the Defendant

reserves his right to take appropriate legal action against the

Plaintiff for these utterly baseless statements.

8. It is also stated that the Defendant has, on several earlier

occasions in the past, lavished praise on the bold strategy of the

Plaintiff in applying for and procuring Indias first compulsory license

in the post TRIPS era. For instance, in his interview to a mainstream

media publication, he praised Natcos strategy and his quoted as

stating:

.if the medicine is for the public, what

good is it if the public cannot access it,

says intellectual property expert Mr

Shamnad Basheer. The judgment, a baby

step for Natco, is, in fact, a giant leap for

 rest of the generic pharmaceutical

companies, he says.

This article titled Natco ruling is a watershed in the Hindu Business

Line dated 28 February, 2012 is filed in the instant proceedings and

relied upon.

9. In fact, even in one of the allegedly defamatory articles

mentioned in the plaint, the Defendant states:

For the longest time, Cipla ranked as our

leading poster child for the debate on patents

and access to affordable medicines.

The tables began turning early this year, when

another Indian generic company, Natco filed

India's first post TRIPS compulsory licensing

application seeking to slash the patented prices

of Bayers' patented anti-cancer drug, Nexavar.

In the wake of the compulsory licensing decision,

Natco catapulted to prominence as our national

hero; a bold pharmaceutical company that

refused to cave in to international pressure or to

bed foreign partners, but insisted on pioneering

the delivery of cheaper and more affordable

drugs through a new compulsory licensing

route.

10. The contents of paragraph 9 of the Plaint are denied. It is

denied that the articles denigrates the reputation or lowers the

esteem of the plaintiff in the eyes of the public. It is denied that the

timing of the articles demonstrates that the publication of both the

articles is deliberate or intended to influence the course of the legal

proceedings in C.S. (OS) No. 2270/2009 or as alleged at all. It is

submitted that the articles are the personal views of an individual

and do not amount to defamation. Furthermore, the plaintiff has not

been able to demonstrate that the articles are prejudicial to the

proceedings in C.S. (OS) No. 2270/2009. As noted earlier, SpicyIP

on which the articles were published are read by a sophisticated

audience comprising of intellectual property lawyers and the like

and not the general public. The articles in no way interfere with the

administration of justice, and they merely represent an academic

assessment of the issue between the plaintiff herein and BMS, an

assessment which is well within the purview of the right to free

speech, a right that is constitutionally guaranteed to the Defendant.

11. It is submitted that the Defendants opinion on the Plaintiffs

conduct in misleading the court and pursuing a flawed legal strategy

is predicated on facts found in pleadings submitted by the Plaintiff

itself. In its written statement filed pursuant to the BMS suit in

2009, the Plaintiff denied any intention to launch a generic version

of Dastatinib. In its subsequent response to an injunction

application filed by BMS in 2012, it admitted, very expressly, that at

the time of filing its written statement in 2009, it had a pending

drug marketing license for a generic version of Dasatinib. By no

stretch of imagination can the Defendants view that Natco misled

the court or that it was imprudent to have done so in a case of this

importance and magnitude, be termed as defamatory or tending to

cause prejudice to a fair, reasonable trial or interfering with the

interest of justice. In fact, a perusal of the Plaintiffs own

submissions to the court in the BMS suit after the publication of the

allegedly defamatory statements makes it evident that the Plaintiff

has filed what is essentially a vexatious and frivolous suit with a

view to desperately silencing an academic critic from highlighting

the fact that it actively misled a court of law (by denying any

intention to launch a generic version of Dasatinib when it had a

pending application with the DCGI). The Plaintiff made certain

admissions in two of its replies filed before this Honble Court, the

first being one filed on 26th July 2012 in response to BMS

application under Order 39 Rules 1 & 2 of the CPC and the second

being one filed on 27.07.2012 in response to BMS application under

Order 39 Rule2A. In both these pleadings, the Plaintiff expressly

admitted that it had a pending marketing license at the time of filing

its written statement in the main BMS suit in 2009 and noted in

pertinent part that it is submitted that the suit filed by the Plaintiffs

was itself premature in that it was filed when the Defendant had

only applied for marketing license which activity is permissible in

law. However, very surprisingly, in its response to the contempt

application filed by BMS, a response that was filed on 13 August

2012, after the publication of the allegedly defamatory pieces

(which highlights this admission on the Plaintiffs part), it cleverly

avoids any such admission and makes no mention of the fact that it

had a pending DCGI application for marketing a generic version of

Dasatinib at the time of filing its written statement in the BMS suit

in 2009.

12. The contents of paragraph 10 do not merit a response, since

the Plaintiff has not sought any specific relief on this count.

However, it is respectfully submitted that there is no absolute bar

on reporting of events or cases which are sub-judice and that the

law permits fair comments to be made in relation to such events

and cases. The defendant being an IPR specialist, has only proffered

his personal views on the issue at hand, which amount to a fair

comment in a matter of utmost public importance. It is denied that

the Honble Court will be prejudiced by the articles published by the

defendant. It is stated that the Plaintiff, by making such statements

is trying to equate the Patent Suit to a criminal trial, even in relation

whereto, the fair reporting of the proceedings is permitted, as

recently held by the Honble Supreme Court in the Sahara case. .

13. The contents of paragraph 11 of the Plaint are denied. It is

denied that the defendant has published any defamatory comments

as alleged or at all.

14. The contents of paragraph 12 of the Plaint are denied. It is

denied that the articles disparage or degrade the reputation of the

plaintiff company or as alleged at all. It is denied that the

proceedings in C.S. (O.S.) 2279/2009 are misrepresented by the

defendant or that the publications of the articles in question is

deliberate or intended to defame the plaintiff or to influence the

course of proceedings pending adjudication before this Honble

Court.

15. The contents of paragraph 13 of the Plaint are denied. It is

denied that the articles present a one-sided version of the matter

represented by BMS in C.S. (OS) No. 2279/2009 or that the

defendant more or less tracks the sequence of facts and events as

presented by BMS in the said suit. It is denied that the defendant

did not make any independent enquiries into the matter or did not

exercise any due care or caution or as alleged at all. It is denied

that the assertions, comments and remarks made in the articles are

false or incorrect. Furthermore, it is denied that the defendant has

tried to conduct a trial by media or as alleged at all. It bears

reiteration that the Defendant is a leading academic, and comments

in that capacity to an informed audience. It is also stated that there

is no absolute bar on reporting matters or commenting fairly on

them, when they are sub-judice. In any case, it is submitted that

the Plaintiffs claims are not relevant in the instant proceedings,

which is a case for defamation.

16. The content of paragraph 14 of the Plaint are mere repetition

and are denied. It is denied that the defendant made irresponsible,

reckless, scurrilous comments/remarks against the plaintiff or that

the same lower or tarnish the image of the plaintiff in the eyes of

the public. It is denied that the comments, assertions or remarks

made in the article are deliberate or conscious or aimed at defaming

the plaintiff as alleged or at all. The plaintiff is put to strict proof

thereof.

17. The contents of paragraph 15 of the Plaint are denied and the

Plaintiff put to strict proof. The plaintiff has not been able to show

how the comments and remarks made on the Website have a deep

impact on the reputation of the plaintiff, as alleged or at all.

18. The contents of paragraph 16 of the Plaint are mere

repetition and are denied. The Plaintiff is put to strict proof thereof.

It is stated that the Defendant is not a mere blogger, but a highly

reputed academic with extensive expertise in intellectual property

issues, who writes on the same, in academic journals, in

newspapers such as the Indian Express and the Times of India,

magazines and in legal websites and blogs, such as SpicyIP.

19. The contents of paragraph 17 of the Plaint do not merit a

response, as this is an irrelevant issue in a lawsuit for defamation. It

is submitted that the source of the pleadings is legitimate and from

a reliable source and the defendant will provide the Honble Court

with the source as and when requested by the Honble Court.

20. The contents of paragraph 18 of the Plaint are denied. It is

denied that the defendant is passing judgments or painting a

negative image of the plaintiff regarding the pending suit. It is

stated that the Defendant merely reacted to queries from news

agencies as an expert in the field and nothing in the Defendants

statements therein can be construed to be defamatory in nature. In

fact this is itself borne out by the fact that the Plaintiff has not

instituted separate legal proceedings or arrayed the stated news

papers as Defendants in the instant suit and sought relief from this

Honble Court against the stated news papers. It is denied that the

defendant has deliberately tried to subvert the course of justice with

intent to influence or interfere with the course of proceedings to

benefit BMS or as alleged at all. It is further denied that the

defendant has given a distorted version of the facts in the case to

the media or as alleged at all. It is denied that the defendant has

published absolutely lopsided articles or tried to create a negative

image of the plaintiff company or as alleged. It is denied that the

defendant has tried to defame the plaintiff in connivance with the

defendant or that it has tried to prejudice a fair and reasonable trial

or as alleged at all. It is denied that the defendant has tried to

tarnish the plaintiff or as alleged at all. The remaining contents of

the paragraph under reply do not merit a response. It is submitted

that the defendant is an IPR specialist and a professor and makes

no personal gain from writing any defamatory articles. Furthermore,

the articles are only an individual view and do not in any way

amount to defamation as they only present the defendants

perception of the whole issue in C.S.(O.S.) 2279/2009. It is

vehemently denied that several persons from the government,

medical and patient community called it enquiring about the articles

published by the author. The Plaintiff is put to strict proof thereof.

21. The contents of paragraph 19 of the Plaint are mere

repetition and are wholly denied. It is denied that the articles have

caused incalculable loss to the plaintiff or its business and the

plaintiff is put to strict proof thereof. As the defendant has only

reported facts and expressed fair opinions on those facts, it cannot

amount to defamation and the Plaintiff is not entitled to either a

restraining order or damages.

22. The contents of paragraph 20 of the Plaint are denied. It is

denied that the Plaintiff has suffered any damages what so ever.

The Plaintiffs claim lacks even the barest of particulars to be

reliable. The Plaintiff has offered no basis for calculating damages

and accordingly such unsubstantiated claim is liable for out right

rejection. The Plaintiff suit is an attempt to muzzle fair comments, a

gross abuse of the process of this Honble Cort and is liable to be

dismissed.

23. The contents of paragraph 21 and 22 of the Plaint are denied.

The plaintiff has not made out a cause of action as the defendant

has not indulged in any defamatory or illegal activities against the

plaintiff. The Plaintiff has not made any effort to indicate as to how

the Defendants independent analysis in the allegedly defamatory

articles is without any factual basis.

24. The contents of paragraph 23 of the Plaint are denied and the

plaintiff is put to strict proof thereof. It is stated that no part of the

cause of action arises in Delhi and within the territorial jurisdiction

of this Honble court as the articles in question were uploaded at

Kolkata. There is no publication within Delhi as mere access to a

website would not entail such minimum contacts to allow that the

cause of action or a substantial and integral part of the cause of

action has arisen within Delhi. The defendant accordingly denies

that this Honble Court is clothed with Jurisdiction to entertain and

try the instant suit. The instant suit is liable to be returned for

presentation before a proper court.

25. The contents of paragraph 24 of the Plaint are denied. It is

submitted that the suit has been deliberately over-valued so as to

invoke the jurisdiction of this Court. The Plaintiff is not entitled to

any damages and as such this suit may be dismissed on this ground

alone.

26. The contents of paragraph 25 of the Plaint are vigorously

denied. The Plaintiff is not entitled to either an injunction or order

for damages for reasons already set out in these pleadings.

PRAYER:

27. In the facts and circumstance of the present case, the

defendant humbly prays that this Honble Court:

a) Dismiss the present suit filed by the plaintiff;

b) Grant exemplary costs in favour of the Defendant and against

the Plaintiff;

c) Hold that the baseless suit filed by the Plaintiff amounts to a

frivolous and vexatious one.

d) Pass any other order this Honble Court deems fit in the facts

and circumstances of the present case.

It is prayed accordingly.

Defendant

Through

Kolkata TMT Law Practice

Date: September 28, 2012