The Delhi High Court ('DHC') on July 28, 2022, set aside a petition challenging an order passed by the Competition Commission of India ('CCI') in the case XYZ (confidential) v. Vifor International (AG) ('Vifor'/ 'Petitioner').1 As background, the CCI had issued a notice to Vifor to submit its responses on issues pertaining to patent granted to Vifor in India regarding Ferric Carboxymaltose. Vifor in its reply raised objection on the jurisdiction of the CCI. The Petitioner primarily argued that the issues which were raised in the information clearly touch upon and relate to the rights of a patent holder as enshrined in the Patents Act, 1970 and thus the CCI had exceeded its jurisdiction in taking cognisance of the information received and initiating an enquiry. Further, the responses from Vifor if disclosed could also result in exposing Vifor to criminal proceedings under Article 271 of the Swiss Criminal Code. It was further contended that Section 3(5) of the Competition Act, 2022 ('Act') in unambiguous terms protects the rights of any person in respect of action which may be initiated to restrain any infringement or to impose reasonable conditions as may be necessary for protecting any of his rights which may have been conferred upon him under statues enumerated in that sub-section including the Patents Act, 1970.
CCI countered that the enquiry sought was in respect of price of the drug licensed by the petitioner and sold and distributed within the country which is likely to impact many people and hence they had sufficient jurisdiction. It was further argued that since the proceedings before the CCI stood at a nascent stage, there existed no justification for DHC to either interdict the proceedings or to entertain the challenge as raised at the present stage. The CCI relied upon Monsanto Holdings Pvt. Ltd. and Ors. v. Competition Commission of India & Ors2 to submit that merely because the information relates to a patent, it cannot oust the jurisdiction of the CCI as long as it deals with aspects and subjects covered by Sections 3, 4, 5 and other provisions of the Act. Regarding Vifor's apprehension with respect to the disclosure of commercially sensitive information, the CCI argued that this was clearly misplaced bearing in mind the provisions made in Section 57 of the Act and contended that it was and is open to Vifor to claim confidentiality with respect to any disclosure that it may make before the CCI during the enquiry.
DHC observed that only if an information concerns itself solely with the violations under the Patent Act, 1970 and does not pertain to an issue which could be said to fall within the ambit of the Act would an objection to the CCI's jurisdiction sustain. Further, the apprehension with respect to exposure of confidential and sensitive commercial information was belied in light of the robust and substantial safeguards erected and put in place by Regulation 36 of the Competition Commission of India (General Regulations), 2009. Hence, the DHC disposed the writ petition with the observation that the CCI shall while proceeding further duly consider the objections taken by the petitioner and dispose of the same in accordance with law.
Footnotes
1. Vifor International Limited v. Competition Commission of India W.P.(C) 11263/2022.
2. 2020 SCC OnLine Del 598.
Originally published 30 September, 2022
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