India limitations on injunctions

Copyright

In the Indian Copyright Act of 1957, there are limits on injunctive relief for cases involving architectural plans.

Chapter XII Civil Remedies
“59. Restriction on remedies in the case of works of architecture.-(1)Notwithstanding anything contained in 123[the Specific Relief Act, 1963], where the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has been commenced, the owner of the copyright shall not be entitled to obtain an injunction to restrain the construction of such building or structure or to order its demolition.
(2) Nothing in section 58 shall apply in respect of the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work.”

Patents

S. 108(1) of the Indian Patents Act stablishes: “The reliefs which a Court may grant in any suit for infringement include an injunction and, at the option of the plaintiff, either damages or an account of profits.”

LCHAU, in submission to Standing Committee on Commerce, proposed the following proviso to s. 108(1): "Provided that, in any suit for infringement of a patent relating to a drug, where the constitutional right to health or public health concerns arise, it shall be presumed that monetary damages will be a sufficient remedy for infringement, unless the patentee can show the existence of an extraordinary circumstance where monetary damages are inadequate and where the plaintiff will suffer irreparable harm if an injunction is not granted"

Temporary Injunctions:

The traditional grounds for grant or refusal of a preliminary injunction in India, were (1) that the plaintiff demonstrate that it has a prima facie case; (2) prima facie evidence that there has been an infringement; and (3) that the balance of convenience is in favour of the plaintiff. It seems that "public interest" was traditionally not a factor.  However, in a recent case Cipla v. Roche, the Delhi High Court denied a temporary injunction on a cancer drug (erlotinig) that Cipla was manufacturing despite the existence of a patent owned by OSI (and licensed to Roche). The decision cites the US. eBay decision and applies the 4-factor test, 

In weighing public interest factor, the court declared that:

“Undoubtedly, India entered into the TRIPS regime, and amended her laws to fulfill her international obligations, yet the court has to proceed and apply the laws of this country, which oblige it to weigh all relevant factors. In this background the Court cannot be unmindful of the right of the general public to access life saving drugs which are available and for which such access would be denied if the injunction were granted….Another way of viewing it is that if the injunction in the case of a life saving drug were to be granted, the Court would in effect be stifling Article 21 [right to life] so far as those would have or could have access to [generic erlotinib] are concerned.”