In what is probably the first such trial in a contempt application, the Delhi High Court has held a defendant guilty of contempt of court relying on the WayBack Machine certificate which proved an older version of website of the defendant proving it to be engaged in selling a drug thereby infringing the patent of Sugen Inc. (an indirect wholly owned subsidiary of Pfizer Inc.)
The suit was filed for infringement of patents for the Plaintiffs’ drug Crizotinib before the High Court, where vide order dated January 1, 2016 the High Court granted an ad-interim ex-parte injunction against the Defendants (“injunction order”). One of the defendants was a Bangladesh based entity, who appeared to have an established supply chain for its generic products in India, including in Delhi.
As the Defendants, even after the grant of the interim injunction, were found to be violating the injunction order, the Plaintiffs filed two contempt applications. In the meantime, the matter was decreed against all the Defendants except for the Bangladesh-based entity. Even after the matter was decreed, the Defendant’s infringing products were found to be listed on e-commerce third-party websites. Therefore, evidence was led on the contempt applications to establish a) relationship between the Defendants and b) the contumacious conduct of the Defendants.
During the trial, the Defendants were confronted with Wayback machine certificate for the internet archives of the Defendants’ website indicating that the Bangladesh based entity was an associated company of the Defendants. [The website “Internet Archive,” offers tools known as “Wayback Machine” that provides access to a digital library of internet sites in digital form. The said service enables users to access and see the different versions of a web site over time..]
During the final arguments, the Plaintiffs’ lawyers, Pravin Anand, Tusha Malhotra and Richa Bhargava from Anand and Ananddrew the attention of the High Court to the cross-examination of the Defendant No. 1, the documents filed in the suit and the Wayback Machine certificate to assert that all the Defendants (even against which the matter stands decreed), were connected and associated entities and therefore have committed wilful and contumacious disobedience.
In view of this, the High Court held the Defendant No.1, Mr. Katikala Vijaya Prakash, in wilful and contumacious disobedience of the order dated January 6, 2016 passed by it and accordingly liable for committing contempt within the meaning of Order XXXIX Rule 2A of the Code of Civil Procedure, 1908. The matter is now pending for hearing on the aspect of sentencing of Mr. Katikala Vijaya Prakash.