29 Petitioner

TC: 29
Before
THE HONBLE SUPREME COURT OF INDIA
In the Matter of
SPECIAL LEAVE PETITION (CIVIL) (________/ 2015)
ZAYER INDIA
APPELLANT
v.
KIPLA AND ANR.
RESPONDENTS
MEMORANDUM FOR THE APPELLANTS
-Table of Contents-
-Appellant-
TABLE
TABLE OF CONTENTS
OF
CONTENTS
II
STATEMENT OF JURISDICTION
VIII
STATEMENT OF FACTS
IX
STATEMENT OF ISSUES
XII
SUMMARY OF PLEADINGS
XIII
I.
A.
THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE. THE INSTANT SLP RAISES IMPORTANT QUESTIONS OF LAW. -
1
1
B.
THAT THE APPELLANT HAS SUFFERED GRAVE INJUSTICE.
C.
THE DECISION OF THE HONBLE HIGH COURT IS PATENTLY ERRONEOUS.
II.
A.
THE DECISION OF THE HONBLE HIGH COURT SHOULD BE REVERSED. 8

THAT THE COMPATS ORDER IS A NULLITY DUE TO LACK OF JURISDICTION TO ENFORCE
I
INDEX OF AUTHORITIES
PLEADINGS AND AUTHORITIES
B.
FUNDAMENTAL RIGHTS THAT THE INTERPRETATION MADE BY THE
C.
UNREASONABLE RESTRICTION ON THE RIGHT UNDER ARTICLE 19 (1) (G).

8
THAT TAKING RECOURSE TO A LEGAL REMEDY CANNOT TANTAMOUNT TO AN ABUSE OF
DOMINANT POSITION.
PRAYER
HONBLE DELHI HIGH COURT
8
IMPOSES AN
-18
XIV
-MEMORANDUM FOR THE PETITIONERi
-Statement of Jurisdiction-
-Petitioner-
INDEX OF AUTHORITIES
CASES CITED
S. NO.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
CASE NAME
Anisminic Limited v. Foreign Compensation Commission, (1969)2 AC
147.
Arunachalam v. Sethuratnam, AIR 1979 SC 1284.
Aspen Highlands Skiing Corp. v Aspen Skiing Co., [1982] 472 US:
611.
Atari v Nintendo, 975 F.2d 932 (9th Cir. 1992).
Bennet Colman & Co. v. Union of India, AIR 1973 SC 106.
Berkey Photo v. Eastman Kodak, 603 F.2d 263 (2nd Cir. 1979).
Bhagwati Developers v. The Peerless, [2013] 178 Comp Cas 1 (SC).
Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38.
Blueberry Books v. Google India Pvt. Ltd., 205 (2013) DLT 228.
Carbodium Universal Ltd. v. Central Board of Direct Taxes, 1989
(Supp- 2) SCC 462.
CCE v. Venus Castings (P) Ltd, AIR 2000 SC 1568.
CIT v. PJ Chemicals Ltd., AIR 1994 SC 2727.
Continental Bag Co. vs. Eastern Bag Co., 210. US 405 (1909).
Contl Paper Bag Co. v. E. Paper Bag Co., 210 U.S. 405 (1908).
CSU, L.L.C. v. Xerox Corp., 203 F.3d 1322 (Fed. Cir. 2000).
Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147,
1182 (1st Cir. 1994).
Dayaram v. Sudhir Batham, 2011 (11) SCALE 448.
Delhi High Court Bar Association & Anr. v. Govt. of NCT of delhi,
203(2013)DLT129.
Dhannalal v. Kalawatibai AIR 2002 SC 2572.
Dodge v. Ford Motor Company, 170 NW 668 (Mich 1919).
Durga Shankar v. Raghuraj, AIR 1954 SC 520.
E. States Retail Lumber Dealers Assn v. United States, 234 U.S. 600
(1914).
Esher Singh v. State of A.P., AIR 2004 SC 3030.
Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).
Himmat Lal v. State of Madhya Pradesh AIR 1954 SC 403.
IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG.,
(Case C-418/01).
Jhummamal v. State of MP, AIR 1988 SC 1973.
Jindal Steel and Power Ltd. v. Steel Authority of India Ltd.
-MEMORANDUM FOR THE RESPONDENTSii
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
-Petitioner-
[2012]107CLA278(CCI).
K. Veeraswami v. Union of India & ors., (1991) 3 SCC 655.
Kuriakose v. State of Kerala, AIR 1977 SC 1508.
L. Chandrakumar v. UOI, 1997 (2) SCR 1186.
Magill ITP, BBC and RTE v. Commission, Cases C241/91 and
C242/91 (1995), ECR I-743.
Mathai v. George, (2010) 3 SCR 533.
Matsushita v Zenith, [1986] 475 US 574.
Namit Sharma v. UOI, No. 2309 of 2012 Supreme Court of India.
Natco v. Bayer, MANU/IC/0108/2012.
Needle, Inc. v. Natl Football League, 130 S. Ct. 2201, 2208 (2010).
Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs, , Case C7/97, 1998 E.C.R. I-7791, [1999] 4 C.M.L.R. 112.
Parke Davis v. Probel ECJ 29 FEB 1968.
Pazhassi Raja Charitable Trust v. Union of India, AIR 2010 SC 218
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, Appeal
(civil) 992 of 2002 Supreme Court of India.
R. K. Jain v. Union of India, 1993 (4) SCC 119.
R.D. Shetty v. UOI, Ajay Hasia v. Khalid Mujib.
Radhey Shyam & Anr vs Chhabi Nath & Ors, CIVIL APPEAL
NO.2548 OF 2009.
Raghubar v. UOI, AIR 1952 SC 263 (274).
Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa
(2009) 4 SCC 299.
Rajendra Singh Yadav And Ors v. State Of U.P. And Ors, 1990 SCR (2)
171.
Sajid Ali v State 2013 VII AD (Delhi) 670; Re Special Reference No. 1
of 2012, 2012 (9) SCALE 310: (2012) 10 SCC 1.
Sakal Papers ltd. v. Union of India 1962 AIR 305.
Sampath Kumar and Ors. v. UOI, AIR 1987 SC 386.
Smt Ganga bai v. Vijay KumarAIR 1974 SC 1126.
Sodan Singh v. New Delhi Municipal Committee (1989) 4 SCC 155.
Som Prakash v. Union of India, AIR 1981 SC 212.
State of Assam v. Barga Dewani (1970) 3 SCC 236.
State of Bihar v. Kameswar, AIR 1952 SC 252.
State of MP v. Ramakrishna Ganapat Rao Limsey, AIR 1954 SC 20.
State of U.P. v. Indian Hume Peipe Co. Ltd. AIR 1977 SC 1132.
State of UP v. Harish Chandra, (1996) 9 SCC 309.
T. C. Basappa vs T. Nagappa And Another, 1955 SCR 250.
The Director General v. M/s. Ingersoll-Rand (I) Ltd., Bangalore and
-MEMORANDUM FOR THE RESPONDENTSiii
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
-Petitioner-
Anr.
Union Of India v. R. Gandhi, [2010] 6 S.C.R.
US v Colgate & Co, [1919] 250 US 300.
US v Grinnell, [1966] 384 US 563.
VERIZON COMMUNICATIONS INC. V. LAW OFFICESOF
CURTIS V. TRINKO, LLP (02-682) 540 U.S. 398 (2004) 305 F.3d 89.
Verizon Communications v. Law Offices of Curtis V. Trinko, 540 U.S.
398, 408 (2004).
Verizon v Trinko, 540 U.S. 398.
Volvo v. Veng, EUECJ C-238/87.
Western India Plywood Ltd. v. P. Ashokan (1997) 7 SCC 638.
World Phone India Pvt. Ltd v. WPI Group Inc USA, [2013] 178 Comp
Cas 173 (Del).
Zee Telefilms v. Union of India, Writ Petition (civil) 541 of 2004.
Supreme Court of India
STATUTES AND RULES CITED

S. No.
1.
BIBLIOGRAPHICAL INFORMATION
The Constitution of India, 1950
2.
Indian Patents Act, 1970
3.
Competition Act, 2002
4.
Delhi High Court Rules
ARTICLES REFERRED
S. NO.
1.
2.
BIBLIOGRAPHICAL INFORMATION
Competition and Regulation Issues in the Pharmaceutical Industry, available at
http://www.oecd.org/competition/sectors/1920540.pdf
Competition: Antitrust procedures in abuse of dominance, available at
http://ec.europa.eu/competition/publications/factsheets/antitrust_procedures_102_en.pd
f
-MEMORANDUM FOR THE RESPONDENTSiv
-Petitioner-
3.
Per Commission Vice President, Joaquin Almunia, Antitrust: Commission fines

Servier for curbing entry of cheaper versions of cardiovascular medicine (Brussels, 9
July, 2014), at http://europa.eu/rapid/press-release_IP-14-799_en.htm
4.
RAMA SARMA, Commentary on Intellectual Property Laws, (1st Edn.), at p. 28.
BOOKS REFERRED
1.
HALSBURYS LAWS
OF INDIA,
COMPETITION LAW AND TRADE PRACTICES CONFLICT OF
2.
LAWS COURTS,( Vol. 10, Lexis Nexis Butterworths, New Delhi 2007).
T. RAMAPPA, COMPETITION LAW IN INDIA, POLICY, ISSUES AND DEVELOPMENTS (Second
3.
ed., Oxford University Press, 2009) (2006).

COMPETITION LAW TODAY, CONCEPTS, ISSUES,
4.
ed., Oxford University Press, 2008) (2007).

GAUTAM BANERJEE, GUIDE TO THE COMPETITION LAW, (Commercial Law Publishers
5.
(India) Pvt. Ltd., 2011).

S M DUGAR, U P MATHUR, DINESH AGNANI, PUBLISHERS EDITORS BOARD, GUIDE TO
6.
COMPETITION LAW, ( 5 ed., Vol. 2, Lexis Butterworths Wadhwa, Nagpur, 1979) (2010).
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTITON OF INDIA, ( Honble Mr. Justice
AND
THE LAW IN PRACTICE, (Vinod Dhall
C.K. Thakker ed., Honble Mr. Justice S.S. Subramani ed., Honble Mr. Justice T.S. Doabia
ed., Honble Mr. Justice B.P. Banerjee ed., Vol. 5 LexisNexis Butterwoths Wadhwa, Nagpur
7.
1950) (2009).
KEVIN COATES, COMPETIITON LAW AND REGULATION OF TECHNOLOGY MARKETS, (Oxford
8.
University Press 2011).

M P JAIN, INDIAN CONSTITUTIONAL LAW (Samaraditya Pal rev., Justice Ruma Pal rev., 6
9.
ed., Vol. 2, 2010) (1962).

H. M. SEERVAI, CONSTITUIONAL LAW IN INDIA, ( Fourth ed., Vol. 1, Universal Law
Publishing Co. Pvt. Ltd. 2007) (1967).

10. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTITON OF INDIA, ( Honble Mr. Justice
C.K. Thakker ed., Honble Mr. Justice S.S. Subramani ed., Honble Mr. Justice T.S. Doabia
ed., Honble Mr. Justice B.P. Banerjee ed., Vol. 2 LexisNexis Butterwoths Wadhwa, Nagpur
1950) (2009).
11. ABIR ROY, JAYANT KUKMAR, COMPETITION LAW IN INDIA, (Second ed., Eastern Law House,
2014).
-MEMORANDUM FOR THE RESPONDENTSv
-Statement of Jurisdiction12. MANOHAR
AND
-Petitioner-
CHITALEY, THE AIR MANUAL, CIVIL
AND
CRIMINAL, (6th ed.,Vol. 10, All
India Reporter Pvt. Ltd. Nagpur 2004).

DATABASES REFERRED
http://www.manupatra.com
http://www.westlawindia.com
STATEMENT
OF JURISDICTION
The counsels on behalf of the petitioner, in the matter of Amit Sharma v. Govt. of NCT of
Delhi and others, have filed the present Special Leave Petition under Article 136 1 of the
Constitution of India challenging the orders of denial of bail to the petitioner passed by the
Sessions Court and the High Court and also against the order of refusal to club FIRs
passed by the Sessions Court.
Article 136 of the Constitution of India, Special leave to appeal by the Supreme Court: (1) Notwithstanding
anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the
territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or
made by any Court or tribunal constituted by or under any law relating to the Armed Forces.
-MEMORANDUM FOR THE RESPONDENTSvi
-Statement of Facts-
-Appellant-
STATEMENT
OF
FACTS
BACKGROUND
An epidemic like situation was triggered as soon as the vicious haemorrhagic fever Lebola
broke out in December, 2013. Almost 30,000 patients were diagnosed with the Lebola virus,
12,000 of them succumbed to this deadly virus. In India alone, there are approximately 2500
confirmed patients suffering from Lebola.
THE DRUG
In March of 2014, Zayer Inc. developed a drug LebinX, the only known cure for Lebola virus
and patented the same in USA. The USA government classified LebinX as an orphan drug and
reimbursed 50% of the R&D costs. Zayer Inc. patented the same formulation in India in October
2014 with the help of its wholly owned subsidiary Zayer India. LebinX was sold at INR
36,000 for 60 tablets per month.
LICENCE
Kipla Pvt. Ltd. one of Indias largest pharmaceutical brands, sought to enter into a licencing
agreement with Zayer Inc. with an offer to manufacture and sell LebinX at a price of INR 600 for
the same dosage of 60 tablets. But the negotiations couldnt take off as a result of which the
licence was refused by Zayer India.
THE INFRINGING DRUG & SUIT
In February 2015, Kipla introduced a generic version of LebinX at a price of INR 600 for 60
tablets and sought to patent its formulation on the grounds that their drug, Lebocin possessed
therapeutic efficacy over the existing drugs in the market. Zayer India, was quick in moving to
the High Court in an original suit seeking an interim injunction and protection against
infringement of its patent.
BEFORE CCI
Aggrieved by the suit, Kipla moved the Competition Commission of India (CCI) stating that
Zayer Indias refusal to license and subsequent effort to injunct Kipla from manufacturing and
-MEMORANDUM FOR THE RESPONDENTSvii
-Statement of Facts-
-Appellant-
selling amounted to a gross abuse of the dominant position considering the increase in the
number of deaths due to Lebola. The CCI however did not find a prima facie case against Zayer
India. Kipla then moved the Competition Appellate Tribunal (COMPAT) in an appeal arguing
that CCI should have recognised the impact on public health as a result of the abuse of dominant
position exercised by Zayer India.
COMPATS ORDER
The COMPAT set aside CCIs order citing that there were immense social costs in allowing
Zayer India to violate its obligations towards public health enshrined under Article 21 of the
Constitution. It noted that if Kipla is injuncted even as a willing licensee, the public will then be
solely and absolutely dependent on Zayer India for access to life-saving drugs, and this fall
squarely within the prohibition that Section 4 of the Competition Act.
BEFORE THE HONBLE HIGH COURT OF DELHI
Zayer India moved the Delhi High Court under Article 226 challenging the order of COMPAT on
a number of grounds, chief amongst them being the fact that COMPATs order was a nullity for
lack of jurisdiction and the violation of the Fundamental Right under Article 19(1)(g). The High
Court dismissed the petition citing the cost to public health as irreparable against the monetary
loss of Zayer India.
SPECIAL LEAVE PETITION
BEFORE THE
HONBLE SUPREME COURT
A. Zayer India sought Special Leave to appeal against the order of the Honble Delhi High Court.
When the SLP came up for admission the Honble Apex Court issued notices to Kipla Pvt. Ltd.
and also to the Attorney General to present the views of the Union Government on the instant
matter. The special leave has now been listed for final disposal.
-MEMORANDUM FOR THE RESPONDENTSviii
-Statement of Issues-
-Appellant-
STATEMENT OF ISSUES
The following issues are presented before the Honble Supreme Court of India:I.
WHETHER THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?
II. WHETHER THE DECISION OF THE HONBLE HIGH COURT SHOULD BE UPHELD OR NOT?
-MEMORANDUM FOR THE RESPONDENTSix
-Pleadings and Authorities -
- Appellant-
SUMMARY
I.
OF
PLEADINGS
The Appellant most humbly submits before the Honble Supreme Court that the Special
Leave Petition is maintainable since there exist an unsettled position of law i.e. whether
COMPAT can enforce fundamental rights or not, refusal to license amounts to abuse or not
etc., there has been grave injustice caused to the appellant as it hurts the very purpose for
which a person indulges in business and there is a patent error in the judgment, which has
been made clear through plethora of cases that technical member as in COMPAT cannot
decide issues pertaining to fundamental rights.
II. The Appellant most humbly contends before the Honble Supreme Court that the decision of
the Honble High Court should be reversed as COMPATs order is nullity due to lack of
jurisdiction to enforce fundamental rights as it consist of technical members who have been
considered to be not competent to decide issues of constitutional importance, there has been
an unreasonable restriction imposed as right to refusal is enshrined under article 19(1)(g)
and recourse to legal remedy cannot tantamount to be abuse of dominant position.
-MEMORANDUM FOR THE PETITIONERx
- Appellant-
PLEADINGS AND AUTHORITIES

I.
THAT THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE.
1.
The appellant most humbly submits that the special leave petition filed before the Honble
Supreme Court, against the order of the Honble Delhi High warrants the exercise of the
Supreme Courts extraordinary powers under Article 136 and qualifies the tests laid down
by this Honble court for the grant of special leave to appeal. This is so because the appeal
raises important questions of law [A], grave injustice has been inflicted upon the appellant
[B] and the decision of the Honble High Court of Delhi is patently erroneous [C].
A. The instant SLP raises important questions of law.
2.
It is most humbly submitted that the instant appeal posits a question of law of public
importance before the Honble Supreme Court. It is relevant to note that the Honble
Supreme Court being the apex judicial body in the country has the power and the
prerogative to pronounce a judgment to put questions of law of general importance to rest. 2
Laying down the law for the nation is one of the key functions of the Honble Supreme
Court3 thus a petition that raises a question of law is held to be maintainable.4
3.
In the instant matter, the respondents central contention is that, Zayer Indias refusal to
license the drug to it, and the subsequent effort to injunct Kipla from manufacturing and
selling the drug, amounted to a gross abuse of its dominant position5 This contention has
been upheld by the decision of the Honble COMPAT which has been affirmed by the
Honble Delhi High Court.
CCE v. Venus Castings (P) Ltd, AIR 2000 SC 1568, see also CIT v. PJ Chemicals Ltd., AIR 1994 SC 2727.
Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38; See also, State of U.P. v. Indian Hume
Peipe Co. Ltd. AIR 1977 SC 1132; Western India Plywood Ltd. v. P. Ashokan (1997) 7 SCC 638.
4
Mathai v. George, (2010) 3 SCR 533.
5
Moot Proposition, para 6.
3
-MEMORANDUM FOR THE PETITIONER1
-Pleadings and Authorities 4.
- Appellant-
In effect, the impugned decision conceives the exercise of a patent right and pursuit of a
legal remedy, i.e. injunction, to be illegal and abusive. In light of such a decision, this
appeal raises a profound question of law before this court, i.e. whether a refusal to license a
patent and seeking the legal remedy of injunction can tantamount to an abuse of dominant
position.
5.
As a matter of principle, the right of an intellectual property owner to prevent third parties
from manufacturing and selling or importing, without his consent, products incorporating
6.
the protected subject matter constitutes the very essence of his exclusive right.6
World over, the inherent tension between the right to exclude under the patent laws and the
prospect that a unilateral refusal to deal could give rise to antitrust liability has perplexed
jurists and legal scholars.7 The Federal Circuit in the U.S.A. recently held that unilateral
refusals to license intellectual property rights are virtually never antitrust violations. 8
However, the U.S.A. Supreme Court has recognized that blanket legality for refusal to
license patents could have serious implications for competition and innovation. 9
7.
The question as to whether refusal to license IPR and taking recourse to legal remedies for
their protection can tantamount to an abuse of dominant position requires immediate
attention of this court and demands final disposal. In light of the long standing practice to
Case 238/87, Volvo, 1988 ECR 6211, para 8; Case 53/87; see also, Verizon Communications v. Law Offices of
Curtis V. Trinko, 540 U.S. 398, 408 (2004).
7
Sbastien J. Evrard, H. Stephen Harris, Jr., Geoffrey D. Oliver, Shinya Watanabe, and Dr. Johannes Zt,
International Licensing of IPR, available at http://www.jonesday.com/files/Publication/d3dfd2cf-850c-47f0-964cfe4f5a64b925/Presentation/PublicationAttachment/1a0fe1d0-7e71-443e-b8cd-0f3273d50219/International
%20Licensing.pdf.
8
Contl Paper Bag Co. v. E. Paper Bag Co., 210 U.S. 405 (1908) (holding that patentee acting unilaterally has no
duty to license acquired and unused patent). On unilateral refusals, see also, 3B PHILLIP E. AREEDA & HERBERT
HOVENKAMP, ANTITRUST LAW 77074 (3d ed. 2007); on unilateral refusals to license IP rights, seeHERBERT
HOVENKAMP ET AL., IP AND ANTITRUST 13.2 (2d ed. 2010); cf. Am. Needle, Inc. v. Natl Football League, 130 S.
Ct. 2201, 2208 (2010) (distinguishing unilateral from concerted refusal to license trademark rights; antitrust liability
for unilateral action is narrower and reachable only when it monopolizes); see also, 35 U.S.C. 271(d)(4) (2006).
9
Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); see also, E. States Retail Lumber Dealers Assn v.
United States, 234 U.S. 600 (1914).
- Appellant-
grant leave where the question raised was a question of law10, the instant appeal may be
held to be maintainable.
B. That the appellant has suffered grave injustice.
8.
It is the humble submission of the appellant that the judgment rendered by the Honble
High Court inflicts grave injustice upon the appellant. The Honble Supreme Court has
repeatedly held that leave will be granted where there is grave, blatant and atrocious
9.
miscarriage of justice.11
Zayer India Ltd., in the pursuit to protect its legal rights that have been put in peril by the
acts of the respondent, moved the Delhi High Court in an original suit for infringement
and also sought an injunction. The very effort of the appellant to redeem the remedy
provided to it by law has been condemned as being anti-competitive by the impugned
10.
judgment.
The Honble COMPAT yields the authority under the Competition Act, 2002 to impose
penalties and to direct the enterprise held liable for abuse of dominant position to
discontinue such abuse.12 The order of the COMPAT and the Honble Delhi High Court, in
effect, rob Zayer of any legal means to give effect to the rights conferred on it by law,
11.
defeating the very purpose of the rights and rendering Zayer absolutely defenseless.
This Apex institution of justice has categorically held that to preclude a person from the
grievance redressal system and to disallow any effort to approach the court for
enforcement of rights and dispute resolution will be the gravest travesty of justice and will
take away all credibility from the justice system.13
10
State of U.P. v. Indian Hume Pipe Company Ltd., AIR 1977 SC 1132; See also Western India Plywood ltd. v. P.
Ashokan, 1997 (7) SCC 638.
11
Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38, see also State of Assam v. Barga Dewani
(1970) 3 SCC 236.
12
Section 27
13
Supra note 11.
- Appellant-
The appellant humbly submits that such grave injustice warrants the exercise of power by
the Honble Supreme Court under Article 136. Couched in the words of the eminent
constitutional law jurist, D.D. Basu, Its [Article 136] limit, when it chases injustice, is the
sky.14 In Esher Singh v. State of A.P. said that when the judgment of the high court has
led to serious miscarriage of justice, the Supreme Court may not refrain from doing its
duty and abstain from interfering.15
12.
Notably, there are only 2,500 persons who are ailing from Lebola. Thus, obtaining an
injunction order against the alleged unauthorized sale of the generic variant of Zayers
medicine by Kipla is crucial for Zayer in order to safeguard its interests, else the small
consumer base will be seized by Kipla causing irreparable damage to Zayer, even if the
13.
infringement suit is decided in its favour.

This profit motive gets furthered by the grant of a patent over a product where the inventor
is granted an exclusive right for a limited period, which is a carefully crafted bargain that
14.
rewards an inventor in lieu of his contribution towards the society.16

If Zayers effort of seeking protection of its patent rights and seeking an injunction are
held to be abusive and illegal, it is imperative that its economic interests will be defeated
in light of Kipla producing the generic variant of its medicine at the price of 600 for 60
Tablets. This would mean that Zayers market share will be swallowed by Kipla along
with the profits accruing therefrom, even if the infringement suit is subsequently decided
in Zayers favour. This would lead to an irreparable act of injustice being inflicted on
Zayer which must be cured by this court by exercising its jurisdiction under Article 136.
C. The decision of the Honble High Court is patently erroneous.
14
Basu D D, page 5754 Volume 5; LexisNexis Butterworths Wadhwa, Edition 8, 2009.

Esher Singh v. State of A.P., AIR 2004 SC 3030; see also Durga Shankar v. Raghuraj, AIR 1954 SC 520;
Arunachalam v. Sethuratnam, AIR 1979 SC 1284
16
Natco v. Bayer.
15
- Appellant-
15. It is the humble contention of the appellant that the High Courts decision in the instant
matter suffers from glaring errors and is in stark contrast to settled principles of law. It is now
a settled proposition that the Supreme Court will intervene in cases where the High Courts
decision is in flagrant violation of the law.17
16. The appellant contends that the Honble Delhi High Courts decision that Zayers refusal to
license and that its efforts to enforce its patent rights by seeking an injunction is an abuse of
its dominant position dismantles the sacred principle of ubi jus ibi remedium which is deeply
entrenched in our legal system. Further, holding that COMPAT has jurisdiction to enforce
fundamental rights is in clear contravention of Article 14 of the Constitution as made clear by
the decisions rendered by this Apex Court.
17. The classic case of Ashby v. White 18 had laid down what is now a well-known principle of
law, that where there is a right there is a remedy. This doctrine is deeply ingrained in the
Indian Constitutional scheme also.19 Highlighting the importance of the doctrine, the Apex
Court in Bhagwati Developers v. The Peerless20 observed, If a man has a right he must have
the means to vindicate and maintain it.21
18. In the context of enforcement of intellectual property rights, the Delhi High Court in
Blueberry Books v. Google India Pvt. Ltd. 22 observed that the owner of the IPR has a right to
protect his interests and initiate proceedings against any infringement irrespective of where
the infringing activities take place. Sans these remedies, these rights have no meaning.
17
State of Assam v. Barga Dewani (1970) 3 SCC 236.

State of Justice In India: Issues of Social Justice
edited by Ranabir Samaddar
19
Sajid Ali v State 2013 VII AD (Delhi) 670; Re Special Reference No. 1 of 2012, 2012 (9) SCALE 310: (2012) 10
SCC 1; Dayaram v. Sudhir Batham, 2011 (11) SCALE 448; (2012) 1 SCC 333; Pazhassi Raja Charitable Trust v.
Union of India, AIR 2010 SC 218; Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa (2009) 4
SCC 299.
20
[2013] 178 Comp Cas 1 (SC); See also dhannalal v. Kalawatibai AIR 2002 SC 2572; Smt Ganga bai v. Vijay
KumarAIR 1974 SC 1126
21
[2013] 178 Comp Cas 1 (SC)
22
205 (2013) DLT 228
18
- Appellant-
19. The impugned decision renders Zayers every effort to effectuate its legal rights offensive by
holding it to be an abuse under section 4 of the Competition Act, 2002. Despite the fact that
Kipla started to manufacture and sell the generic variant of Zayers medicine without any
license, clearly derogating Zayers rights, the impugned judgment terms Zayers effort to
injunct Kipla an abuse. Effectively, Zayers rights have become a farce since there is no way
it can enforce them.
20. Thus the High Courts decision conspicuously leaves Zayers rights meaningless and
derogates the rule of law principle which is central to Article 14. Such manifest error
apparent on the face of the proceedings when it is based on clear ignorance or disregard of
the law must be corrected by the Supreme Court23.
21. It is most humbly submitted before this Honble Supreme Court that it has been the practice
of this court to grant leave where the High Court acts perversely or otherwise improperly 24
or when the decision is patently erroneous.25
22. It is further submitted by the appellant that the impugned judgment that holds that COMPAT
can decide on issues pertaining to constitutional interpretation and enforcement of
fundamental rights stands in blatant contravention of the law laid down by the Supreme
Court in various landmark judgments.
23. This is so because the COMPAT comprises of two technical members as against one judicial
member.26 Unlike courts who are exclusively manned by judges, tribunals consist of
members who possess no knowledge of the constitution and thus absolutely incompetent to
adjudicate upon disputes concerning its interpretation and enforcement. 27
24. The judgment of the Honble Delhi High Court ignores the mandate of the 7 judge bench of
the Apex Court laid down in the landmark judgment of L. Chandrakumar v. UOI 28 any
23
Radhe Shyam and Anr. v. Chaabi Nath & Ors; See also T.C. Basappa vs. T. Nagappa
State of MP v. Ramakrishna Ganapat Rao Limsey, AIR 1954 SC 20.
25
Jhummamal v. State of MP, AIR 1988 SC 1973.
26
Section 53 C., Competition act, 2002
27
R. Gandhi v. Union of India
28
1997 (2) SCR 1186
24
- Appellant-
weightage in favor of the service members or expert members and value- discounting the
judicial members would render the tribunal less effective and efficacious than the High
Court. The Act setting up such a tribunal would itself have to be declared as void under such
circumstances.
25. The same principle has been reiteranted and upheld by this Apex Court in the case of
R. K. Jain vs. Union of India, 29 Namit Sharma v. UOI and in Union of India v. R.
Gandhi, President, Madras Bar Association30.
26. It is also settled that where the appeal is pending before the Supreme Court and when the
court also finds that there is patent error in the judgment of the High Court, the argument that
the appeal should have been filed before the Division Bench of the High Court is not
acceptable.31
27. Thus, in light of the patent irregularity in the decision of the Honble High Court, the SLP
may be rendered maintainable.
II.
THAT THE DECISION OF THE HONBLE HIGH COURT SHOULD BE REVERSED
A. THAT THE COMPATS ORDER IS A NULLITY DUE TO LACK OF JURISDICTION TO ENFORCE

FUNDAMENTAL RIGHTS.
28. It is humbly submitted by the appellant that the order of the COMPAT holding Zayer India
Ltd. liable for abuse of dominant position, founded on the ground that, There were heavy
social costs to permitting Zayer India to violate its obligations towards public health, keeping
in mind the fundamental right to health recognized under Article 21 of the Constitution of
India32 is a nullity in law since COMPAT does not yield the authority to interpret and
enforce fundamental rights.
29
1993 (4) SCC 119

(2010) 11 SCC 1
31
State of UP v. Harish Chandra, (1996) 9 SCC 309; See also Carbodium Universal Ltd. v. Central Board of Direct
Taxes, 1989 (Supp- 2) SCC 462.
32
Moot proposition para 6.
30
- Appellant-
29. The argument proffered is twofold: that the COMPAT comprises of a majority of technical
members who possess no expertise or experience in the field of constitutional law [A]. An
arguendo is also forwarded, that the fundamental rights cannot be enforced against Zayer,
which is a private entity not falling within the definition of state as per Article 12. [B]
i. That the COMPAT comprises of a majority of expert members who possess no
expertise or experience in the field of constitutional law.
30. The appellant humbly contends that the COMPAT, a body comprising of a majority of expert
members, cannot be handed over with the task of interpreting and enforcing fundamental
rights since it is predominantly composed of expert members, who are not required to
possess any know-how about the constitution and the enforcement of fundamental rights.
31. In the instant matter, the sole justification employed by COMPAT to affix liability under
section 4 of the Competition Act, 2002, is that Zayer is violating its obligations towards
public health, keeping in mind the fundamental right to health recognized under Article 21 of
the Constitution of India.33Thus, the Honble COMPATs order purports to effectuate the
fundamental right to health guaranteed to all persons under Article 21 and uses the violation
of the same as a ground to hold Zayer liable for abuse of its dominant position.
32. It is the appellants vehement contention that the COMPAT has clearly overstepped its
jurisdiction. In the case of Anisminic Limited v. Foreign Compensation Commission 34, the
House of Lords gave a very broad connotation to the concept of 'jurisdictional error'. It has
been laid down in Anisminic that a tribunal exceeds jurisdiction not only at the threshold
when it enters into an inquiry which it is not entitled to undertake, but it may enter into an
enquiry within its jurisdiction in the first instance and then do something which would
33
34
Moot proposition para 6.

(1969)2 AC 147
- Appellant-
deprive it of its jurisdiction and render its decision a nullity. Or it may have based its decision
on some matter which, under the provisions setting it up, it had no right to take into account.
33. In the instant matter too, while it may appear that the COMPAT possessed the jurisdiction to
hear the matter, it has conspicuously treaded in the area of interpretation and enforcement of
the constitution, basing its decision on the ground of fundamental right violation clearly
transgressing the jurisdiction conferred upon it by the Competition Act, 2002 which
establishes it. The lack of jurisdiction becomes further profound owing to the fact that the
COMPAT comprises of a majority of expert members 35, who are required to possess no
qualification, expertise or experience in dealing with constitutional law matters whatsoever.36
34. With the advent of tribunalisation in our nation, the concerns regarding the efficacy of these
tribunals and the competence of persons who man them has heightened. The Supreme Court
has expressed its displeasure towards tribunals being manned by expert members in excess of
judicial members at a plethora of occasions. 37 The report of the Arrears Committee (198990)38 delves into the issue of competence of judges sitting in tribunals and makes the
following observation, A tribunal must inspire confidence and public esteem that it is a
highly competent and expert mechanism with judicial approach and objectivity. What is
needed in a tribunal, which is intended to supplant the High Court, is legal training and
experience, and judicial acumen, equipment and approach.39
35. It is clear from a cursory reading of the Competition Act, 2002, that it contemplates the
composition of the COMPAT with two expert members and only one judicial member.40 This
35
Section 53C, Competition Act, 2002.

Id.
37
Rajendra Singh Yadav And Ors vs State Of U.P. And Ors 1990 SCR (2) 171.
38
MINISTRY OF LAW, GOVERNMENT OF INDIA, COMMITTEE ON REFORMS OF THE CRIMINAL
JUSTICE SYSTEM (MALIMATH COMMITTEE (2003).
39
Id at p. 164 13.3
40
Section, Competition Act, 2002.
36
- Appellant-
is a clear additional weight added in the favor of expert members as against judicial members
which has been condemned by the Malimath Committee.
36. Importantly, a seven judge bench of the Apex Court in the case of L. Chandrakumar v. UOI 41
also quoted richly from the Malimath Committee Report and endorsed the aforementioned
statements. The Apex Court, held that whenever an issue of interpretation of a statute in
conjunction with the Constitution is faced, it must be heard and decided by at least a 2 judge
bench out of which at least one should be a judicial member.
37. Notably, there is no such mandate on the COMPAT, which comprises of a majority of expert
members, therefore each of its decisions which entrenches upon constitutional interpretation
is open to challenge on the ground of lack of competence and expertise to decide the same.
38. It is pertinent to note here that the COMPAT has itself recognized that the remedies of
fundamental right enforcement and abuse of dominant position are distinct and disparate. 42
Typically, the COMPAT has refrained from enforcing fundamental rights in a plethora of
cases where violation is claimed, tacitly conceding to the objection raised therein that the
COMPAT is not the correct forum for enforcement of Fundamental Rights.43
39. In the recent case of Namit Sharma v. UOI44, in the context of the Right to Information Act,
2005, the court stated, While applying its mind, it has to dwell upon the issues of legal
essence and effect. The Commission has to resolve and balance the conflict between the
right to privacy and right to information45
40. Analogously, COMPATs decision in the instant matter invariably involves balancing the
rights of Zayer to earn profits under Article 19 (1) (g) against the right to health of the public
under Article 21. In this situation, appreciation and application of legal principles is a sine
qua non to the determinative functioning of the Commission as it can tilt the balance of
41
L. Chandrakumar v. UOI
Jindal Steel and Power Ltd. v. Steel Authority of India Ltd. [2012]107CLA278(CCI)
43
The Director General v. M/s. Ingersoll-Rand (I) Ltd., Bangalore and Anr.
44
Namit Sharma v. UOI, Para 104
45
Id at para. 60.
42
- Appellant-
justice either way.46 The decision of the question would depend upon the interpretation of
the Constitution and the laws and this would preeminently be a matter fit to be decided by the
judiciary, because it is the judiciary which alone would be possessed of expertise in this
field.47Majority of COMPATs members, however, are ill equipped to deal with such
complex questions of law that are bound to be raised before them.
41. This implies that questions of Constitutional importance that even baffle judges of the
Supreme Court and the High Courts48 would be decided by persons who possess no
expertise, knowledge, qualification or prior experience to help them with coming to a
decision which is in accordance with the standard principles of adjudication.
42. The Framers of the Constitution were apprehensive about delegating power to interpret and
enforce fundamental rights to even the High Courts, which is clear from the words of Shri
Rohini Kumar Chaudhary, Such power of delegation should be exercised very sparingly
because after all the personnel of the Supreme Court would no doubt be more qualified than
the personnel of a High Court.49
43. The Apex Court in Union of India v. R. Gandhi 50 the court held that tribunals should be
manned by persons who are able to discharge judicial functions properly and inspire
confidence. COMPAT, in the present matter, has taken upon itself to enforce the fundamental
rights of the citizenry, unmindful of the fact that the decision rendered by it is a nullity for
lack of jurisdiction to enforce fundamental rights since it is composed of a majority of
members who have no know how as to the interpretation and enforcement of fundamental
rights.
46
Id at para.106.
Sampath Kumar and Ors. v. UOI, AIR 1987 SC 386.
48
R K Jain v. UOI 1993.
49
Constituent Assembly Debates,
50
UNION OF INDIA v. R. GANDHI, PRESIDENT, MADRAS 865 866 BAR ASSOCIATION SUPREME COURT
REPORTS [2010] 6 S.C.R., [Paras 37 and 39]
47
- Appellant-
44. In light of the above, the appellant submits that the decision of COMPAT is a nullity in law
for want of jurisdiction to enforce Fundamental Rights.
ii. Arguendo: That Zayer does not fall under the ambit of state as under Article 12.
45. It is humbly submitted before the Honble Supreme Court that even if, for the sake of
argument, it is conceded that COMPAT can enforce fundamental rights, its judgment would
remain perverse inasmuch as it enforces fundamental rights against a private entity which, by
no stretch of imagination be considered to fall under the ambit of state as under Article 12
of the Constitution.
46. It is submitted that the order of the COMPAT rests on the reasoning that Zayer India could
not be allowed to violate its obligations towards public health, keeping in mind the
fundamental right to health recognized under Article 21 of the Constitution of India. 51
Article 21, it goes without saying, is available only against the state and it is the states
prerogative to not to violate a persons right guaranteed under Article 21. The COMPATs
order, however, clearly imposes such an obligation on Zayer, which is a private organization.
47. It is humbly contended that Zayer does not satisfy the tests laid down by this Honble Court
which are essential to render an entity state. Zayer is neither created by a statute nor
financially assisted by the state. It does not enjoy a monopoly conferred by the state and is
not created by virtue of transfer of a government-owned corporation. Manufacture and sale of
medicines for sale can also not be called public functions. Thus it is easily discernable that
none of the tests prescribed by this Honble court in various cases are applicable. 52 Public
functions, even if performed are not sufficient to render Zayer state since it is categorically
clear that Zayer is not financially, functionally and administratively dominated by or under
51
52

R.D. Shetty v. UOI, Ajay Hasia v. Khalid Mujib, Som Prakash v. Union of India, AIR 1981 SC 212.
- Appellant-
the control of the Government.53 Thus, even if COMPAT were to enforce fundamental rights,
it is incomprehensible as to how a private entity like Zayer could be held to owe obligations
towards public health. Thus, the appellant humbly submits that the order of the Honble
Delhi High Court which affirms the order of COMPAT be reversed.
B. THAT THE INTERPRETATION MADE BY THE HONBLE DELHI HIGH COURT
UNREASONABLE RESTRICTION ON THE RIGHT UNDER ARTICLE
IMPOSES AN
19 (1) (G).
48. It is humbly submitted by the appellant that the Honble Delhi High Courts order holding
that Zayer India Ltd. has abused its dominant position has the effect of abridging its rights
under Article 19 (1) (g) by purporting to impose an unreasonable restriction over it.
49. The right to enter into a contract relating to property or business is a fundamental right
guaranteed by Article 19 (1) (g).54 Such a right is so intricately connected with the right to
carry on business, that it can be claimed to be in reality and substance nothing but an instance
of the exercise of the named fundamental right. 55 A decision that infringes a fundamental
right is unconstitutional and must be interfered with. 56 It is the assertion of the appellant that
the right to refuse to enter into a contract and to protect its own patent rights lie at the center
of its right to carry on business under Article 19 (1) (g).57 The decision of the Honble Delhi
High Court which affirms the order of the COMPAT, holds that the refusal to grant license
amounts to abuse of its dominant position. In effect, the order negates the appellants right to
put down a request for license and mandates that the request be accepted.
50. Such a decision directly and substantially sabotages the capacity of Zayer to carry on its
business and protect its interests. It is pertinent to note here that firms such as Zayer that
53
Pradeep Kumar Biswas vs Indian Institute of Chemical Biology, Zee Telefilms vs Union of India.
Basu D D, Constitution of India, Page 2838, Volume 2.
55
Raghubar v. UOI, AIR 1952 SC 263 (274); State of Bihar v. Kameswar, AIR 1952 SC 252; Kuriakose v. State of
Kerala, AIR 1977 SC 1508 (para 6).
56
Himmat Lal v. State of Madhya Pradesh AIR 1954 SC 403.
57
Berkey Photo v. Eastman Kodak, 603 F.2d 263 (2nd Cir. 1979).
54
- Appellant-
operate in the pharmaceutical sector are faced with special difficulties and heightened risks.
High sunk costs and exorbitant expenditure on research and development are hallmarks of
the industry and as such, exclusivity of production is both, the sole most important incentive
and also the most valued right.58 The ability to claim exclusivity and recognition for an
invention is the lifeblood of business in the pharmaceutical industry and is not just well
within the ambit of Article 19 (1) (g)59 but is also a human right.60
51. The appellant humbly submits that such a right is snatched away when its refusal to license
and subsequent effort to injunct Kipla for violation of its rights is held to be abusive and
illegal by the Honble Delhi High Court. It is humbly submitted that the ability to exclude
competitors from the use of a new patent may be said to have been of the very essence of
the rights conferred by the patent, as it is the privilege of any owner of property to use or not
use without question of motive.61
52. In the instant case, Zayers rights under Article 19 (1) (g) have been restricted on the pretext
that they offend section 4 of the Competition Act, 2002. It is pertinent to note that the
grounds provided under section 4 are exhaustive 62 and new grounds cannot be interpreted so
as to impose a restriction other than those provided for in the law. In the instant matter, the
interpretation of section 4 made by the COMPAT, which has received the affirmation of the
Honble Delhi High Court, holds refusal to grant license and exerting a legal right by way of
a suit seeking infringement to be offensive and abusive is unreasonable and impinges upon
the essence of the right contained under Article 19 (1) (g).
58
William Kok, Facing the Challenge: The Lisbon Strategy for growth and employment, Report, November 2004.
Supra note 27.
60
Article 27(2) of Universal Declaration of Human Rights: everyone has the right to protection of the moral and
material interests resulting from any scientific, literary or artistic production of which he is the author.
61
Continental Bag Co. vs. Eastern Bag Co., 210. US 405 (1909).
62
ABUSE OF DOMINANCE UNDER THE COMPETITION ACT, 2002, available at
http://www.cci.gov.in/images/media/Advocacy/Awareness/Abuse_Dominance.pdf
59
- Appellant-
53. It is humbly contended that the essential facilities doctrine (EFD) which is nascent to Indian
competition law jurisprudence can also not be employed to justify the setting liability on
Zayer under section 4 of the Act.
54. Zayers refusal per se does not affect competition, because the entrants are not prohibited
from using a substitutable cure for the virus and compete on merits. That is, if an
incumbent holds monopoly power because of competition on the merits, in normal course of
doing business, competition law would not sanction its conduct63
55. In US v Grinnell64, the U.S. Supreme Court held that monopolization includes the willful
acquisition or maintenance of monopoly power as distinguished from growth or development
as a consequence o f a superior product, business acumen, or historic accident. Globally,
Courts have held that a monopolists refusal to license its internally generated IPR to
competitors is not an act of monopolization65.
56. US v Colgate & Co66 held that antitrust law does not restrict the right of a business entity to
freely exercise his independent discretion as to the parties with whom he will deal. Further, in
Aspen Highlands Skiing Corp. v Aspen Skiing Co.67, the U.S. Supreme Court held, that a
firm possessing market power has no duty to co-operate with its business rivals.
57. In the famous case of Volvo v. Veng 68, it was held that the refusal to grant license to third
parties even in return for reasonable royalties cannot in itself be regarded as anticompetitive.
It should not be regarded as abuse but mere right to trade, which comes with the ownership
of the product due to registration of any IP rights. The judgment in the above case rests on
the sound reasoning that Veng only wanted to supply the consumers the same product that
63
The Supreme Court in Verizon [2004] 02 US 682 also emphasized: to safeguard the incentive to innovate, the
possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive
conduct.
64
[1966] 384 US 563: 571
65
Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147, 1182 (1st Cir. 1994).
66
[1919] 250 US 300.
67
[1982] 472 US: 611
68
EUECJ C-238/87.
- Appellant-
Volvo was supplying. In addition, Volvo could show its sunk costs in developing the car
market, which contributed to the establishment of the market for Volvo cars wings. Veng
was clearly a free rider in a competing but non-innovative market.
58. The given rule is of much importance to the instant case. It is to be noted that Kipla wished to
supply the consumers the same product as was being provided by Zayer making out a clear
case of free riding and evading competition on merits. Further, the pharmaceutical industry is
marked with high sunk costs, which Zayer too has incurred for developing the drug for
Lebola in such a short span of time. In such a circumstance, existence of intellectual property
rights would have no meaning if the right of refusal to license were not exercised.69
59. In CSU, L.L.C. v. Xerox Corp.70, Federal Circuit Court held that, in the absence of any illegal
tying, fraud in the patent and trade mark office or sham litigation, the patent holder may
enclose the statutory right to exclude others from making, using or selling the claimed
invention free from liability under the antitrust laws.
60. To attract the applicability of the EFD, the element of new product in a downstream
market are well recognized and are the touchstone in determining whether the refusal would
amount to abuse or not. The European Court of Justice in IMS case 71 expressly recognizes
that the intellectual property right should constitute, an indispensable factor in the
downstream supply of a (secondary) product and the potential licensee should intend to
produce new goods or services not offered by the owner of the right.
61. Similarly, in Magill,72the ECJ stipulated that the existence or the exercise of an IPR might
become an abuse when there is a consumer demand for a new product and the refusal to
supply has reserved to the incumbent the secondary market by excluding all competition in
that market. Kipla, in the instant case, neither proposed to sell a new product, nor was its
69
Supra note 4.
203 F.3d 1322 (Fed. Cir. 2000).
71
(Case C-418/01).
72
Magill ITP, BBC and RTE v. Commission, Cases C241/91 and C242/91 (1995), ECR I-743.
70
- Appellant-
product in any way going to be placed in a downstream market. Thus the EFD cannot be
applied to curb the right to freely contract ensured the appellant under Article 19 (1) (g).It
thus becomes clear that the EFD does not find application in the instant case.
62. In Verizon v. Trinko73, Justice Scalia said: Firms may acquire monopoly power by
establishing an infrastructure that renders them uniquely suited to serve their customers.
Compelling such firms to share the source of their advantage ... may lessen the incentive ... to
invest in those economically beneficial facilities. Enforced sharing also requires antitrust
courts to act as central planners, identifying the proper price, quantity, and other terms of
dealing - a role that they are ill suited. Moreover, compelling negotiation between
competitors may facilitate the supreme evil of antitrust: collusion
63. In Bronner, after summarizing the shortcomings of EFD in both the US and Europe the court
stated, In the long term it is generally pro-competitive and in the interest of consumers to
allow a company to retain for its own use facilities which it has developed for the purpose of
its business. Thus while competition was increased in the short term it would be reduced in
the long term. Moreover, incentive to invest in efficient facilities would be reduced if its
competitors were, upon request, able to share the benefits...74 The U.S. Supreme Court in
2004 expressed its own displeasure with the doctrine in the Trinko case 75 and held that the
defendant did not have a general duty to deal with rivals with whom it had not dealt before.
64. Finally, it is submitted that Kipla cannot claim equity due to the operation of the concept of
unclean hand propounded in Atari v Nintendo. 76 In light of the above it becomes clear that
there is no justification for curbing the right to refuse license of the appellant thereby
violating the fundamental right of the appellant under Article 19 (1) (g).
73
540 U.S. 398.

Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs, , Case C-7/97, 1998 E.C.R. I-7791, [1999] 4 C.M.L.R.
112.para. 57.
75
540 U.S. 398 (2004)
76
975 F.2d 932 (9th Cir. 1992)
74
- Appellant-
C. THAT TAKING RECOURSE TO A LEGAL REMEDY CANNOT TANTAMOUNT TO AN ABUSE OF

DOMINANT POSITION.
65.
It is the humble submission of the appellant that the impugned decision renders the very
institution of the suit seeking injunction as abuse, thereby rendering recourse to a legal
remedy can tantamount to abuse of dominant position.
66.
According to the Blacks law dictionary, legal recourse means, Lawful pursuit for justice
or decision under the law, typically leading to proceeding within the jurisdictions court
system. An entity accuses another for an unlawful action, to protect an entitys rights from
violation.77 The question as to whether a mere effort to obtain a legal remedy can ipso
facto be deemed to be abusive assumes significance since the principal function of the
judiciary is to provide legal remedies against infringement of personal and property rights
of persons.78 Seeking a remedy provided in law is implicit in the rule of law notion as
under Article 14 and hence embargos on their redemption must be imposed with the highest
caution.
67.
Recourse to Court by law is a concept firmly entrenched in the Constitutional scheme of

India. In case of infringement of a legally recognized right, recourse to law cannot be
denied and the rule of law enshrined in Article 14 of the Constitution will enable any
person including a non-citizen to approach the legal forum of the country for redressal of
his grievances.79 Accessing institutions of justice for redressal of grievances is a matter of
human rights.80 This Honble court has emphatically held that if this opportunity to
approach the court for a legal remedy is restricted or not given, the community would lose
77
John Black, Blacks Law Dictionary, 4th Edition.

http://gujarathighcourt.nic.in/articles/roleofjudicary.htm
79
http://www.legalservicesindia.com/article/article/the-role-of-indian-judiciary-with-special-reference-to-global-ipregime-797-1.html.
80
Delhi High Court Bar Association & Anr. v. Govt. of NCT of delhi, 203(2013)DLT129.
78
- Appellant-
its faith in the courts, their very existence will cease to have any meaning and people will
return to the law of the jungle for settling their dispute on the streets.81
68.
The decision of the Honble Delhi High Court affirming the Honble COMPATs decision
that the very institution of the suit of infringement against Kipla is an abusive and illegal
act, renders the right of the defendant to pursue the remedy of injunction for an alleged
infringement nugatory and worthless. It purports to extinguish a remedy provided under
law and declares its exercise offensive.
69.
It may be added here that the injunction is sought against the manufacture and sale of
Lebocin, a drug, which is admittedly a generic variant of LebinX82 for which there is no
license, compulsory or voluntary, making a prima facie case of infringement and thus
grant of injunction. It is a mere assertion that the impugned drug possesses therapeutic
efficacy.83 However, even in light of the above circumstances, which make out a robust
case for the appellant, the Honble Delhi High Court has affirmed that the very effort to
resist Kipla from impinging upon the legal rights of Zayer by seeking an injunction
constitutes abuse under section 4 of the Competition Act, 2002.
70.
In light of the above, the appellant contends that such a decision is in derogation of the
principle of Rule of Law which is embedded in the fundamental right under Article 14
and thus unsustainable in law.
81
K. Veeraswami v. Union of India & ors., (1991) 3 SCC 655.

83
Id.
82
- Appellant-
- Appellant-
PRAYER
Wherefore, in the light of facts presented, issues raised, arguments advanced and authorities
cited, counsels on behalf of Appellant humbly pray before this Honble Court to kindly
declare and adjudge that:
1. The present Special Leave Petition is maintainable.
2. The decision of Honble High Court be reversed and supplementally a writ of
certiorari be issued against the order.
And pass any other order which this Honble Court may deem it fit in the light of justice, equity
and good conscience.
And for this act of kindness of your lordship the respondents shall as duty bound ever pray.
On behalf of Zayer
TC-29
Counsels for the Appellant

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TC: 29

MEMORANDUM FOR THE APPELLANTS

THAT THE APPELLANT HAS SUFFERED GRAVE INJUSTICE.

THE DECISION OF THE HONBLE HIGH COURT IS PATENTLY ERRONEOUS.

THE DECISION OF THE HONBLE HIGH COURT SHOULD BE REVERSED. 8

PLEADINGS AND AUTHORITIES

FUNDAMENTAL RIGHTS THAT THE INTERPRETATION MADE BY THE

UNREASONABLE RESTRICTION ON THE RIGHT UNDER ARTICLE 19 (1) (G).

HONBLE DELHI HIGH COURT

-MEMORANDUM FOR THE PETITIONERi

STATUTES AND RULES CITED

Indian Patents Act, 1970

Competition Act, 2002

Delhi High Court Rules

Per Commission Vice President, Joaquin Almunia, Antitrust: Commission fines

RAMA SARMA, Commentary on Intellectual Property Laws, (1st Edn.), at p. 28.

COMPETITION LAW AND TRADE PRACTICES CONFLICT OF

ed., Oxford University Press, 2009) (2006).

ed., Oxford University Press, 2008) (2007).

(India) Pvt. Ltd., 2011).

THE LAW IN PRACTICE, (Vinod Dhall

University Press 2011).

ed., Vol. 2, 2010) (1962).

Publishing Co. Pvt. Ltd. 2007) (1967).

-MEMORANDUM FOR THE RESPONDENTSv

-Statement of Jurisdiction12. MANOHAR

CHITALEY, THE AIR MANUAL, CIVIL

CRIMINAL, (6th ed.,Vol. 10, All

India Reporter Pvt. Ltd. Nagpur 2004).

-MEMORANDUM FOR THE RESPONDENTSvi

HONBLE SUPREME COURT

-MEMORANDUM FOR THE RESPONDENTSviii

WHETHER THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE OR NOT?

-MEMORANDUM FOR THE RESPONDENTSix

-Pleadings and Authorities -

-MEMORANDUM FOR THE PETITIONERx

-Pleadings and Authorities -

PLEADINGS AND AUTHORITIES

THAT THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE.

-MEMORANDUM FOR THE PETITIONER1

-Pleadings and Authorities 4.

-MEMORANDUM FOR THE PETITIONER2

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-MEMORANDUM FOR THE PETITIONER3

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infringement suit is decided in its favour.

rewards an inventor in lieu of his contribution towards the society.16

Basu D D, page 5754 Volume 5; LexisNexis Butterworths Wadhwa, Edition 8, 2009.

-MEMORANDUM FOR THE PETITIONER4

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State of Assam v. Barga Dewani (1970) 3 SCC 236.

-MEMORANDUM FOR THE PETITIONER5

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-MEMORANDUM FOR THE PETITIONER6

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THAT THE DECISION OF THE HONBLE HIGH COURT SHOULD BE REVERSED

A. THAT THE COMPATS ORDER IS A NULLITY DUE TO LACK OF JURISDICTION TO ENFORCE

1993 (4) SCC 119

-MEMORANDUM FOR THE PETITIONER7

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Moot proposition para 6.

-MEMORANDUM FOR THE PETITIONER8

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Section 53C, Competition Act, 2002.