NMC420 Memo Respondent

NMC420
IN THE HONB’LE SUPREME COURT OF INDIKA
______________________________________________________________
Case No. _____ of 2019
(Under Article 32 of the Constitution of India)
Florence International Petitioner
v.
OBT Co. Ltd. Respondant
___________________________________________________________________________
Clubbed with - Case No. _____ of 2019
(Under Article 133 of the Constitution of India)
Ministry of Tribal Affairs Appellant
v.
OBT Co. Ltd. Respondent
___________________________________________________________________________
Clubbed with - Case No. _______ of 2019
(Under Article 139A of the Constitution of India)
Parry International Pharmaceutical Ltd Petitioner
v.
OBT Co. Ltd. Respondent
Memorandum filed on behalf of OBT Co. Ltd.

AL-AMEEN 4th National Moot Court Competition 2019
TABLE OF CONTENT
INDEX OF AUTHORITIES......................................................................................................ii
LIST OF ABBREVIATION ...................................................................................................... v
STATEMENT OF JURISDICTION...................................................................................... viii
STATEMENT OF FACTS ....................................................................................................... ix
SUMMARY OF ARGUMENT ...............................................................................................xii
ARGUMENTS ADVANCED ................................................................................................... 1
I. Whether fundamental rights of the Zulu Tribe have been violated. .................................. 1
A. Public Interest litigation can be filed against the OBT Co. Ltd. ....................................... 1
B. Rights of indigenous people under Article 19 are not violated ......................................... 1
C. No Rights violated under Article 21 of the Constitution .................................................. 3
D. Duty of the State towards Zulu Tribe................................................................................ 4
II. OBT Co. Ltd. has not violated any rights under Forests Rights Act, 2006 of the Zulu Tribe
...........................................................................................................................................6
A. OBT Co. Ltd. constructed the sanctuary by following the due procedure of law ............ 6
B. Collection of Poppy Yew Plants by OBT Co. Ltd. is need of hour .................................. 7
C. Zulu Tribe does not have right to hunt .............................................................................. 8
III. Parry International Pharmaceutical infringes patent on Avalox-400 ................................. 9
A. Patent on Avalox-400 is valid ........................................................................................... 9
(a) Avalox-400 has Novelty .......................................................................................... 9
(b) Avalox-400 is result of Inventive Step .................................................................. 11
(c) Avalox-400 have industrial application ................................................................. 11
B. PIP infringed the patent of Avalox-400 .......................................................................... 11
PRAYER FOR RELIEF .......................................................................................................... 13
Page | i
Memorandum for Respondent
INDEX OF AUTHORITIES
Acts and Statutes
1. Constitution of India, 1950 .................................................................................... 12, 13

2. Patent Act 1970 ............................................................................................................ 20
3. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
rights) Act 2007 ........................................................................................................... 13
4. The Wildlife Protection Act,1972 .................................................................... 13, 17, 18
International Statutes
1. Indigenous and Tribal Populations Convention, 1957 (No. 107) .............................5

2. United Nations Declaration on the Rights of Indigenous Peoples........................... 5
Cases
1. Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors., (2011) 5 SCC
29.................................................................................................................................. 13
2. Andhra Industrial Works v. Chief Controller of Imports and Ors, AIR 1974 SC 1539
10.................................................................................................................................. 12
3. Bachan Singh v. State of Punjab, AIR1980 SC 898 .................................................... 12
4. BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333 .................. 12
5. Banvasi Seva Ashram v. State of U.P. 1986 (4) SCC 753........................................... 18
6. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511
...................................................................................................................................... 20
7. Centre for Environment Law, WWF-I v. Union of India (UOI) and Ors. (2013) 8 SCC
234................................................................................................................................ 18
8. CERC v. Union of India (1996) 2 SCC 549 ................................................................ 16
9. Court on its own motion v. Union of India, 2012 (12) SCALE 307............................ 12
10. Daulat Singh Surana v. First Land Acquisition Collector, [2006] 11 SCALE 482 ..... 13
11. Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 ............. 14
12. Dick v. Tullis, (1896)13 RPC 149 ............................................................................... 20
13. Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872 ................................... 14
14. General Tire Rubber Co. v. Fire Stone Tyre and Rubber Co. Ltd., [1972] RPC 457 .. 21
15. Glaverbel S. A. v. Dave Rose and Ors., (2010) 167 DLT 6 ........................................ 20
Page | ii
16. Guruvayur Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546
¶ 50 ............................................................................................................................... 12
17. Hukumdev Narain Yadav v. Lalit Narain Mishra, [1974] 2 S.C.C. 133 ..................... 13
18. Karjan Jalasay Yojana Assargrasth Sahkar & Sangarsh Samiti v. State of Gujarat 1986
(Supp) SCC 350 ........................................................................................................... 15
19. Kharak Singh v. State of U.P. AIR 1963 SC 1295 ................................................ 12, 13
20. Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161 ........................................... 13
21. LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811...................... 14
22. M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160 .......................... 14
23. Mahesh Chandra v. Regional Manager, U.P. Financial Corp, AIR 1993 SC 935 ....... 14
24. Maneka Gandhi v. Union of India, AIR 1978 SC 597................................................. 14
25. Moti Sunar v. State of U.P., 1997 CrLJ 2260 at 2261 (All) ........................................ 13
26. N.D. Jayal v.Union of India 104 (2004) 9 SCC 362 .................................................... 17
27. Nagar Palika Parishad v. State of U.P. AIR 1998 ALL 232 ........................................ 18
28. Netai Bag v. State of West Bengal, AIR 2000 SC 3313 .............................................. 14
29. Novartis AG & Ors. v. UOI & Ors, (2013) 6 SCC 1 .................................................. 21
30. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180............................. 15
31. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest (2013) 6 SCC
476................................................................................................................................ 16
32. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 ........... 16
33. Rickmann v. Thierry, (1896) 14 RPC 105 (HL) .......................................................... 21
34. Sachidanand Pandey and Anr.v. State of West Bengal and Ors. (1987) 2 SCC 295 ... 13
35. Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471 .................................... 13
36. State of Kerala v. Peoples Union for Civil Liberties, 2009 (7) TMI 1302 .................. 12
37. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 .............................. 13
38. Union of India v. Zavaray S. Poonawala (2015) 7 SCC 347 ....................................... 19
39. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 ....................................................... 16
40. Waman Rao v. Union of India, (1981) 2 SCC 362 ...................................................... 12
41. Ward Bros. v. James Hill (1901)18 RPC 481 .............................................................. 20
42. Young and Neilson v. Rosenthal & Co.; (1884) 1 Pat. C. 1 ........................................ 22
Page | iii
Books
1. Durga Das Basu, Commentry on Constitution of India, (8th edition, 2008, Justice Y. V.
Chandrachud, Justice S. S. Subramani, Justice B. P. Banerjee) .................................... 2
2. P. Leelakrishnan, Environmental law Case Book, (Second Edition, 2013, Lexis Nexis)
........................................................................................................................................ 7
3. P. Leelakrishnan, Environmental Law in India, (Fourth edition, 2016, Lexis
Nexis).............................................................................................................................9
4. V K Ahuja, Intellectual Rights in India, (2nd Edition,
2015).............................................................................................................................10
5. P.S. Narayana, Patent Law (4th edition, eastern law house) ....................................... 11
Other Authorities
1. Dhar, Biswajit (2011) Effect of Product Patents on the Indian Pharmaceutical Industry,
Center for WTO Studies .............................................................................................. 24
2. F. Hoffmann-La Roche Ltd., Switzerland and OSI Pharmaceuticals, Inc., New Uork vs.
Cipla Ltd., Mumbai Central, Mumbai; (2012) 195 DLT 641 ...................................... 23
3. Indian Patent Application No. 8/Del/94(1994) (issued); Patent Application No.
959/MAS/96; Chaturvedi, Sachin (2007) Kani Case. A Report for GenBenefit ......... 22
4. Protection against Eviction, Diversion of Forest Lands and Forced Relocation, Forest
Rights Act, 2006: Act, Rules and Guidelines .............................................................. 17
5. T. C. James; IPR issues related to medicinal and aromatic plants; J. Traditional and
Folk Practices; Vol. 02,03,04(1); 2016; pg 7-17 ......................................................... 22
Page | iv
LIST OF ABBREVIATION
1. & And
2. ¶ Paragraph
3. ¶¶ Paragraphs
4. AIR All India Reporter
5. All Allahabad
6. Ano Another
7. Art. Article
8. Cal Calcutta
9. Cr.LJ Criminal Law Journal
10. Del Delhi
11. EC European Commission
12. Ed Edition
13. Guj Gujarat
14. ICCPR International Convention on Civil and Political Rights,1966
15. ICESCR International Covenant on Economic, Social and Cultural

Rights,1966
16. ILO International Labour Organisation
17. IP Intellectual Property
18. J. Justice
19. Mad Madras
20. No. Number
Page | v
21. NWAP National Wildlife Action Plan
22. OBT Co. Ltd. Oreo Biotech Company Limited
23. Ori Orissa
24. Ors Others
25. p. Page No.
26. ¶ Paragraph
27. PAT Patna
28. PIP Parry International Pharmaceutical
29. PIL Public Interest Litigation
30. Raj Rajasthan
31. SC Supreme Court of India
32. SCC Supreme Court Reports
33. SCJ Supreme Court Journal
34. Sec. Section
35. Supp Supplementary
36. STFDA Scheduled Tribes and Forest Dwellers Act
37. TK Traditional Knowledge
38. u/a Under Article
39. UDHR United Nations Declaration on human rights
40. U. N. United Nations
41. U.P. Uttar Pradesh
42. UOI Union Of India
Page | vi
43. U.S. United States
44. Vol Volume
45. v. versus
46. W.P. Writ Petition
47. WWF World Wide Fund
Page | vii
STATEMENT OF JURISDICTION
Florence International v. OBT Co. Ltd.
The Petitioner Florence International has approached this Hon’ble Court under Article 32 of
the Constitution. The petitioner, Florence International humbly submits to the jurisdiction of
Hon’ble Supreme Court of Indika.
Ministry of Tribal Affairs v. OBT Co. Ltd.
The Appellant Ministry of Tribal Affairs has approached this Hon’ble Court under Article 133
of the Constitution. The appellant, Ministry of Tribal Affairs humbly submits to the jurisdiction
of Hon’ble Supreme Court of Indika.
Parry International Pharmaceutical Ltd v. OBT Co. Ltd.
The Supreme Court of Indika Suo motto transfers the case from the High Court of Malgudi and
combines with the remaining two cases under Article 139A of the Constitution. The petitioner,
Parry International Pharmaceutical Ltd humbly submits to the jurisdiction of Hon’ble Supreme
Court of Indika.
Page | viii
STATEMENT OF FACTS
BACKGROUND
The diversity of the Republic of Indika is unique. It has large ethnic society and immense
wealth due to which it is rich in biodiversity with both indigenous and ethnic people. The
indigenous tribals live close to forests and have managed and conserved the biodiversity of
their locality. They play a vital role in conservation of environmental management.
ZULU TRIBE
The Zulu Tribe, a scheduled tribe in Indika came from Africa 70,000 years ago. Their survival
depends entirely on nature, they have shunned interaction with outsiders. They live in parts of
Malgudi Ghats, and their population is around 4000 individuals. The tribe's main source of
livelihood comes from the fruit of poppy yew and the Malgudi wild pigs. The poppy yew plant
has medicinal properties, which is a TK of the Tribals. The Malgudi Trunk Road cuts through
the Zulu Tribe's home was open for travellers by 2000. There were violent protests and many
members of Zulu Tribe were electrocuted. The tribals being vulnerable to outside diseases to
which they have no immunity, suffered outbreaks of influenza following contact with outsiders.
The SC ordered to restrict the usage of the road, but vehicles carrying essential commodities
and tourist are allowed to travel through the road with the prior permission of the govt. but they
should not interact with tribe.
MR. OJEL EXPERIENCE
Mr. Ojel, a scientist in OBT Co. Ltd., along with his wife went on a trip to Malgudi Ghats.
Enroute to North Malgudi, Mrs. Ojel was bitten by a highly venomous spider. The tribals, on
hearing the cry for help by Mrs. Ojel, they administered saps from poppy yew, which cured the
poison. Mr. Ojel acquires some samples of the plant for research purposes.
ACTIONS OF OBT CO. LTD.
Mr. Ojel conducted research about the healing properties of the plant poppy yew. He finds out
that, its saps have great medicinal properties. It has effective anti-viral and powerful anti-
bacterial qualities, purifies the blood, prevents damages caused by free radicals, removes
toxins, and treats insect bites and ulcers. OBT Co. Ltd. devices a plan to be able to acquire
enough poppy yew plants. OBT Co. Ltd. finds out that there is an animal called the Malgudi
Page | ix
wild pig that are being hunted by the Zulu Tribe, making it an endangered animal. For
protecting this animal, OBT Co. Ltd. approaches the Government with a proposal for the
construction and maintenance of a sanctuary. The Government, satisfied by the proposal
declares part of the Ghats as sanctuary. During the construction of the sanctuary, a part of it
was encroaching the land of the tribals thereby affecting their livelihood which led to the
eviction of the tribals from that particular area. OBT Co. Ltd. acquired enough plants for their
research. The saps of the plant were then used in the orchestration of a drug. The drug created
was named “Avalox-400” to which clinical trials were conducted and patent was acquired.
OUTBREAK OF BLACK DEATH
Adipura, lies in the heart of Indika suddenly faced an outbreak of an unknown disease due to
which a lot of individuals were affected. The Institute of Communicable Disease found out that
this disease was caused by BACTERIUM YERSINIA PESTIS that circulates among wild
rodents. It was an epidemic of bubonic plague. The infection takes 3-5 days people before they
fall ill, and in 80% of the cases the victim dies. This disease was dubbed, the “Black Death”.
Avalox-400 proved very effective in curing the Black Death. OBT Co. Ltd. approached the
State Bio-Diversity Board to grant permission for the mass production of to meet the demand.
FILLING OF SUITS
1. The mass cutting of the poppy yew as well as the sanctuary lead to a great distress to Zulu
Tribe, which led to starvation and in turn death of some of the tribals. Florence International
filed a petition in the SC on behalf of Zulu Tribe for the violation of their fundamental right.
2. The census report conducted by the Office of the Registrar General and Census
Commissioner was submitted to the Ministry of Tribal Affairs. The report discloses that
sanctuary is restricting the tribals from hunting Malgudi wild pigs, and the cutting of poppy
yew plants had adversely affected the tribals. The Ministry files a petition in the HC of
Malgudi, contending that the Forest Rights Act has been violated. The HC passed a decree
in favour of OBT Co. Ltd., thereafter, the Ministry files an appeal petition before the SC.
3. OBT Co. Ltd. granted license for the drug Avalox-400 to various of companies. PIP had
acquired a license for the distribution of the drug from OBT Co. Ltd., PIP started trying to
make Avalox-400 through various reverse engineering. OBT Co. Ltd. on finding out about
this cancelled all licenses they had granted to PIP. OBT Co. Ltd. files an infringement suit
against PIP.
Page | x
ISSUES RAISED
The Petitioners have placed before this Hon’ble Court, following issues for its
consideration:
[Issue I] Whether the Fundamental Rights of Zulu Tribe have been violated?
[Issue II] Whether the Right under Forest Rights Act, 2006 have been violated?
[Issue III] Whether PIP Ltd has infringed patented drug- Avalox-400?
Page | xi
SUMMARY OF ARGUMENT
[Issue I] Whether the Fundamental Rights of Zulu Tribe have been violated?
It is humbly submitted before the Hon’ble Court that no violation of the rights of the Indigenous
people has caused by OBT Co. Ltd. since it was only safeguarding the endangered Malgudi
wild pigs from extinction, therefore following Precautionary principle and Article 19 & Article
21 of the constitution are not absolute in nature as they are subjected to reasonable restrictions
established by law. State government is under duty to take serious and quick action to protect
environment from serious and irreversible damage and it is duty of the State, not OBT Co. Ltd.,
to provide sufficient remedies to the concerned people.
[Issue II] Whether the Right under Forest Rights Act, 2006 have been violated?
Zulu Tribe is claiming that OBT Co. Ltd. has violated their rights under Forests Rights Act,
2006 by construction of sanctuary and collection of Poppy Yew Plants. It is humbly submitted
that OBT Co. Ltd. has contructed the sanctuary after follwoing the due proceure of law
provided in Wildlife Protection Act, 1972 and taking permission from state government.
Further, the collection of poppy yew plants by OBT Co. Ltd is justified as it is done for a greater
public purpose of saving the life of people of Adipura. Zulu tribe does not have any right to
hunt as this right is specifically excluded from the Forests Rights Act, 2006.
[Issue III] Whether PIP Ltd has infringed patented drug- Avalox-400?
The Patent Act, 1970 provides that the patentee has exclusive right to prevent third parties from
the act of making, using, offering for sale, selling or importing. When the OBT Co. Ltd.
challenged the validity of the patent or counterclaimed for revocation, the burden of proving
invalidity lies on defendant. Consequently, it is humbly submitted before Hon’ble Supreme
Court that Patent on Avalox-400 is valid as Avalox-400 have novelty, inventive step and
industrial application. Further, Parry International Pharmaceutical Ltd infringed the terms of
patent license for the distribution of Avalox-400 .
Page | xii
ARGUMENTS ADVANCED
I. Whether fundamental rights of the Zulu Tribe have been

violated.
¶(1.) It is humbly submitted before the Hon’ble Supreme Court that no violation of the rights
of the Indigenous people has caused by OBT Co. Ltd. since Article 19 and Article 21 of the
constitution as subjected to reasonable restrictions established by law. State government is
under duty to take serious and quick action to protect environment from serious and irreversible
damage and it is duty of the State, not OBT Co. Ltd., to provide sufficient remedies to the
concerned people. It is humbly submitted that first PIL can be filed against the OBT Co. Ltd.
[A.]; secondly Rights under Article 19 are not violated [B], thirdly Rights under Article 21 are
not violated [C]; and finally, State has the duty towards Zulu Tribe [D.].
A. Public Interest litigation can be filed against the OBT Co. Ltd.
¶(2.) A Public Interest Litigation can be filed under Article 32 of the Constitution for
enforcement of Fundamental Rights,1 as guaranteed by Part III of the Constitution.2 In the
present case, there has been no violation of the fundamental rights since, the action taken by
the State was in furtherance of the principle of economic and social justice and thus cannot be
termed as arbitrary or as one which was without the application of the mind. Parts of Malgudi
ghats has been declared as sanctuary by due process of law.
B. Rights of indigenous people under Article 19 are not violated
¶(3.) Article 19(1)(e) provides the right to reside and settle in any part of the country; however,
reasonable restriction under Article 19(5) can be imposed if it is in public interest.3 Therefore,
the rights of the indigenous people to reside and settle in the forest area is not an absolute right
and can be restricted under Article 19(5) if it is in the public interest.4 “Public interest” means
1
Constitution of India, 1950, Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for
enforcement of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part
III.
2
Andhra Industrial Works v. Chief Controller of Imports and Ors, AIR 1974 SC 1539 ¶ 10,;Guruvayur Devaswom
Managing Committee v. CK Rajan and Ors., (2003) 7 SCC 546 ¶ 50; BALCO Employees Union (Regd.) v. Union
of India, (2002) 2 SCC 333.
3
State of Kerala v. Peoples Union for Civil Liberties, 2009 (7) TMI 1302.
4
Court on its own motion v. Union of India, 2012 (12) SCALE 307; Kharak Singh v. State of U.P., AIR 1963 SC
1295, Waman Rao v. Union of India, (1981) 2 SCC 362; Bachan Singh v. State of Punjab, AIR1980 SC 898.
Page | 1
a subject matter in which the rights of the public or a section of the public is interested5 or the
means of concern which is advantageous to people as a whole.6
¶(4.) The Government while exercising its power and by subscribing to the concept of 'social
justice' and 'economic justice' enshrined in the preamble might detract from some technical rule
in favour of a party7, in order to do greater good to a larger number so as to act in consonance
with the principles of equality and public trust.8
¶(5.) The Indian Supreme Court has ruled that the government is the best judge to determine if
a public purpose is served by an acquisition.9 Therefore Government agencies are no longer
obligated to refer to any other legislation for determining the propriety of their actions.10
¶(6.) The forest rights in critical wildlife can be subsequently modified or resettled when the
officials under Wildlife Protection Act, 1972 are satisfied that the activities or impact of the
presence of holders of forest rights are sufficient to cause irreversible damage and threaten the
existence of the said species and their habitat.11 Since the tribes right to property is merely a
legal right, and not a fundamental right, the State can acquire their property with just
compensation if it can establish that such appropriations are by authority of law. 12 Mere
obstruction of movement by physical restrictions cannot be the object of a person's travel.13
¶(7.) Hunting of Malgudi wild pigs (protected under The Wildlife Protection Act,1972)14 by
Zulu tribe has pushed their existence to the category of Endangered animals,15 furtherance of
which would led to the extinction, an irreversible damage to the Malgudi wild pigs and balance
of nature. Therefore, restriction on entering a particular part of forest is not arbitrary and in the
pursuance of Directive Principal of State Policy.
5
Kuttisankaran Nair v. Kumaran Nair, AIR 1965 Ker 161.
6
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
7
Sadhuram Bansal v. Pulin Behari Sarkar, AIR, 1984 SC 1471.
8
Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors., (2011) 5 SCC 29; Sachidanand Pandey
and Anr.v. State of West Bengal and Ors., (1987) 2 SCC 295.
9
Daulat Singh Surana v. First Land Acquisition Collector, [2006] 11 SCALE 482.
10
Hukumdev Narain Yadav v. Lalit Narain Mishra, [1974] 2 S.C.C. 133, ¶ 17.
11
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest rights) Act 2007, s 3(2)
(ii): role in the clearance of development projects; s 5: duty to protect forest habitat; s 6: authority to determine
forest rights.
12
Constitution of India, 1950, Art. 300A.
13
Kharak Singh v. State of U.P., AIR 1963 SC 1295 quoted in Moti Sunar v. State of U.P., 1997 CrLJ 2260 at
2261 (All); Vol. 3, Durga Das Basu, Commentry on Constitution of India, Page no. 2137 (8 th edition, 2008, Justice
Y. V. Chandrachud, Justice S. S. Subramani, Justice B. P. Banerjee).
14
The Wildlife Protection Act,1972, Section 9 read with Schedule I.
15
Moot Proposition, ¶8.
Page | 2
C. No Rights are violated under Article 21 of the Constitution
¶(8.) In the present case, there has been no violation of Article 21 of the Constitution. To
establish the violation of Article 21, the act should be subjected to the equality test of Article
14 and test of reasonableness under Article 19.16 Article 14 ensures fairness17 and guarantees
against arbitrariness.18 It provides that every action of the government must be informed by
reasons and guided by public interest.19
¶(9.) Fundamental Rights enshrined in Part III of the Constitution are neither absolute nor
unlimited but are subject to reasonable restrictions which may be imposed by the State in public
interest. It is difficult to lay down any hard or fast rule of universal application but in imposing
restrictions the State must adopt an object standard amounting to social control by restricting
the right of the citizens where the necessities of the situation demand. Another important
consideration is that the restrictions must be in public interest and are imposed by striking a
just balance between the deprivation of right and the danger or evil sought to be avoided.20
¶(10.) Under Article 48-A, the State is burdened with the responsibility of making an endeavor
to protect and improve the environment and to safeguard the forest and wild life of the
country.21 Justice G.S. Singhvi referred to a legal theory of “Doctrine of Public Trust”
developed by the ancient Roman Empire that certain common properties such as air, sea, water
and forests are of immense importance to the people in general and they must be held by the
Government as a trustee for the free and unimpeded use by the general public and it would be
wholly unjustified to make them a subject of private ownership.
¶(11.) Natural resources have got to be tapped for the purposes of social development but one
cannot forget at the same time that tapping of resources have to be done with requisite attention
and care so that ecology and environment may not be affected in any serious way. Preservation
of the environment and keeping the ecological balance unaffected is a task, which not only the
16
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
17
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101; Mahesh Chandra v. Regional
Manager, U.P. Financial Corp, AIR 1993 SC 935.
18
Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872; Netai Bag v. State of West Bengal, AIR 2000
SC 3313.
19
M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160; LIC v. Consumer Education and Research
Centre, AIR 1995 SC 1811.
20
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.
21
Association for Environment Protection v. State of Kerala, A.I.R. 2002 Mad. 298.
Page | 3
Governments, but also every citizen must undertake.22 In the context of emerging jurisprudence
relating to environmental matters, as in the case of human rights, it is the duty of the Supreme
Court to render justice by taking all aspects into consideration23
¶(12.) Hunting of Malgudi wild pigs by Zulu tribe has made it an endangered species, thereby
causing misbalance in the nature. It is duty of the State to preserve both the wildlife and
environment. To save the endangered species of Malgudi wild pigs, it is necessary to leave
them in insolation in forest and they should be protected from being hunted. Action of the state
has been taken on the “Precautionary principle” which means that the State Government and
the concerned authority must anticipate, prevent, and attack the causes of environmental
degradation.24 Therefore, there has been no violation of rights enshrined in Article 21 of Zulu
tribe by construction of sanctuary for the protection of Malgudi wild pigs, since; the action of
the government is guided by public interest.
D. Duty of the State towards Zulu Tribe
¶(13.) It is duty of the government to provide people of the country with necessary conditions
for leading a peaceful life as promised by the Constitution under Art. 21.25 Since the tribes right
to property is merely a legal right, and not a fundamental right, the State can acquire their
property with just compensation if it can establish that such appropriations are by authority of
law.26 When land is acquired for the public purpose, then it is the duty of the State to provide
alternative land to the tribal and other people belonging to the weaker sections, and in case
there was also a place of dwelling on the land, an alternative dwelling place was also directed
to be provided. 27
¶(14.) The right to food is an essential element of Article 21 of the Constitution of India and
what is of utmost importance is that food is provided to the aged, infirm, disabled, destitute
women, destitute men who are in danger of starvation, pregnant and lactating women and
22
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh & Others with Deoji Nandan Pandey v. Union
of India & Others, 1986 (Supp) SCC 517.
23
A.P.Pollution Control Board v. Prof. M.V. Naidu (Retd.) and Others, AIR 1999 SC 812.
24
TN Godavarman thirumulpad v. UOI, (2006) 5 SCC 47: (2006) 4 JT 454.
25
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
26
Constitution of India, 1950, Art. 300A.
27
Karjan Jalasay Yojana Assargrasth Sahkar & Sangarsh Samiti v. State of Gujarat, 1986 (Supp) SCC 350.
Page | 4
destitute children, especially in cases where they or members of their family do not have
sufficient funds to provide food for them.28
¶(15.) It is the duty of the State to ensure that no eviction and resettlement is permissible from
the National Parks and Sanctuaries till all the formalities relating to recognition and verification
of their claims are completed. The State/UT Governments may, therefore, ensure that the rights
of the forest dwelling Scheduled Tribes and other traditional forest dwellers, residing in
National Parks and Sanctuaries are recognized first before any exercise for modification of
their rights or their resettlement, if necessary, is undertaken and no member of the forest
dwelling Scheduled Tribe or other traditional forest dweller is evicted from such areas without
the settlement of their rights and completion of all other actions required.29 In no case a forest
dweller should be evicted without recognition of his rights as the same entitles him to a due
compensation in case of eventuality of displacement in cases, where even after recognition of
rights, a forest area is to be declared as inviolate for wildlife conservation or diverted for any
other purpose.30
¶(16.) The international conventions are considered important to be read with fundamental
rights as they further, enlarge the scope of the same.31 It is the duty of the state to fully
compensate the people concerned for the lands, territories and resources which they have
traditionally owned or otherwise occupied or used, and which have been confiscated, taken,
occupied, used or damaged without their free, prior and informed consent,32 not only in terms
of money but also land.33
28
CERC v. Union of India, (1996) 2 SCC 549.
29
Protection against Eviction, Diversion of Forest Lands and Forced Relocation, Forest Rights Act, 2006: Act,
Rules and Guidelines, Rules V(d).
30
Forest Rights Act, 2006 Section 4(5) read with V(a) Protection against Eviction, Diversion of Forest Lands and
Forced Relocation, Forest Rights Act, 2006: Act, Rules and Guidelines, Rule V(a).
31
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest (2013) 6 SCC 476; Vishaka v. State of
Rajasthan, (1997) 6 SCC 241 at 249, People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473
at 1487.
32
United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, Article 28 available at:
https://www.un.org/development/desa/indigenouspeoples/wp
content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.
33
Indigenous and Tribal Populations Convention, 1957 (No. 107), 29 Sep 1958, Article 12, available
at:https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C107; United
Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, Article 10 r/w Article 28 available
at: https://www.un.org/development/desa/indigenouspeoples/wp-
content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.
Page | 5
¶(17.) For the protection of the Malgudi wild pigs, sanctuary was constructed and maintained
by OBT Co. Ltd. with the permission of the State Government34 which inevitably led to
eviction of Zulu tribe from a particular part of forest and it is duty of the State, not OBT Co
Ltd, to provide sufficient remedies such as money, land35 to the concerned people.
II. OBT Co. Ltd. has not violated any rights under Forests Rights
Act, 2006 of the Zulu Tribe
¶(18.) It is humbly submitted before this Hon’ble Supreme Court that Ministry of Tribal Affairs
has wrongly contended that OBT Co. Ltd. is violating the rights of the Zulu Tribe by
construction of sanctuary and exploitation of poppy yew plants. The sanctuary constructed by
OBT Co. Ltd. is made after following due procedure of law and collection of poppy yew plants
is a necessity. It is humbly submitted that firstly OBT Co. Ltd. constructed the sanctuary by
following the due process of law [A.]; secondly Collection of Poppy Yew Plants by OBT Co.
Ltd. is need of hour [B.]; and finally Zulu Tribe does not have right to hunt [C.].
A. OBT Co. Ltd. constructed the sanctuary by following the due procedure of law
¶(19.) According to Wildlife Protection Act, 1972, a sanctuary is declared by the state
government through notification of its intention of comprising a particular area as a sanctuary
if it is of adequate ecological, faunal, floral, geomorphological, natural or zoological
significance, for the purpose of protecting, propagating or developing wildlife or its
environment.36
¶(20.) OBT Co. Ltd. made a proposal to the State Government for construction of the sanctuary
as part of their CSR. The proposal was made in good faith of protecting the Malgudi Wild Pigs.
Malgudi Wild Pigs were being recklessly hunted by Zulu Tribe as it is their main source of
protein.37 This act by Zulu Tribe made Malgudi Wild Pigs endangered species. The saving of
endangered species is adequate Zoological significance for protecting and developing wildlife
in its environment. Hence, State declared parts of Malgudi Ghats as sanctuary.
34
35
N.D. Jayal v.Union of India, 104 (2004) 9 SCC 362.
36
The Wildlife Protection Act, 1972 (No. 53 of 1972), Section 18 (1).
37
Page | 6
¶(21.) In the case of “Centre for Environment Law, WWF-I v. Union of India (UOI) and Ors.”
Supreme even allowed the relocation of all the Asiatic Lion from Gir forests of Gujrat to Kuno
Wildlife Division for there protection as they were endangered species. 38 Human beings have
a duty to prevent the species from going extinct and have to advocate for an effective species
protection regimes. NWAP 2002-2016 and the Centrally Sponsored Scheme 2009 indicate that
there are many animal species which are close enough to extinction and some of the other
species have already disappeared from this earth. No species can survive on the brink of
extinction indefinitely and that the continued existence of any species depends upon various
factors like human-animal conflict, epidemics, forest fire and other natural calamities etc.”39
So, it is necessary to protect endangered species.
¶(22.) On examination of the scheme of the Wildlife Protection Act, 1972 if it appears that the
statute does not envisage lodging of any objection by any person in the declaration of sanctuary,
then there is no scope for the Court to go into the justification of any declaration of any area to
be included in the sanctuary provided it satisfies the test of Section 18(1) of the Act.40
¶(23.) After declaration of a sanctuary, rights in the sanctuary are inquired into and determined
by collector.41 Collector has conferred right for construction and maintenance of the sanctuary
on OBT Co. Ltd.42
B. Collection of Poppy Yew Plants by OBT Co. Ltd. is need of hour
¶(24.) It is contended that OBT Co. Ltd. is not exploiting the poppy yew plants because the
mass cutting of plants is a necessity. In “Banvasi Seva Ashram v. State of U.P.”43 Supreme
Court allowed construction of Thermal power plant against the rights of the tribals. Court stated
that
“At the same time, we cannot lose sight of the fact that for industrial growth as also for
provision of improved living facilities there is great demand in this country for energy such as
electricity. In fact, for quite some time the entire country in general and specific parts thereof,
in particular, have suffered a tremendous set back in industrial activity for want of energy. A
38
Centre for Environment Law, WWF-I v. Union of India (UOI) and Ors., (2013) 8 SCC 234.
39
Ibid, ¶42.
40
Nagar Palika Parishad v. State of U.P. AIR 1998 ALL 232, ¶ 3.
41
The Wildlife Protection Act,1972 (No. 53 of 1972), Section 19.
42
43
Banvasi Seva Ashram v. State of U.P. 1986 (4) SCC 753; P. Leelakrishnan, Environmental law Case Book,
Page No. 226 (Second Edition, 2013, Lexis Nexis).
Page | 7
scheme to generate electricity, therefore, is equally of national importance and cannot be

deferred.”44
¶(25.) Making of the drug “Avalox-400” is necessary as it is only cure of the new disease
termed as “Black Death”. The whole area of Adipura is in outbreak of this Bubonic Plague.
This is a very dangerous disease which causes death in 80% of the cases within 6-10 days.
Adipura was a developed area where many industries thrive, so it is of greater public
importance to save people of adipura from this disease. So, OBT Co. Ltd. is justified in
collecting the Poppy Yew Plants as, it is doing a work of greater national importance.
C. Zulu Tribe does not have right to hunt
¶(26.) It is humbly submitted that Zulu Tribe does not have any Right of any nature to Hunt
Malgudi Wild Pigs and therefore they cannot enforce any such right. Section 3(1)(l) of the
Forest Rights Act, 2006 provides that any other traditional right customarily enjoyed by the
forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which
are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping
or extracting a part of the body of any species of wild animal as Forest Rights.45
¶(27.) Traditional and customary rights are given to forests dwelling scheduled tribes but still
they cannot hunt any wild animals. This is imposed as restriction to save wildlife species of the
forests. While explaining the importance of protection of biological diversity and wildlife
supreme court had observation that saving wild life is a core responsibility of mankind. Animal
populations are disappearing at an alarming rate. Saving endangered species (plants and
animals) from becoming extinct and protecting their wild places is crucial for our health and
the future of our children.46
¶(28.) So, safeguards are provided to save endangered species from being hunted. There are
prohibition on hunting of any wild animals that are specified in schedules I, II, III and IV of
Wildlife Conservation Act,1972.47 The Hon’ble Supreme Court have recognized importance
of forest rights and did not dismiss the Forest Act as a mere taxing enactment, but considered
44
Ibid, ¶ 10.
45
The Scheduled Tribes and Other TraditionaL Forest Dwellers (Recognition of Forest Rights) Act, 2006 (No. 2
of 2007), Section – 3 (1) (l).
46
Union of India v. Zavaray S. Poonawala, (2015) 7 SCC 347, ¶ 15.
47
WildLife (Protection) Act, 1972 (53 of 1972), Section – 9.
Page | 8
it as one to preserve, protect and promote the forest wealth in the interests of the nation.48 So it
is evident that necessary restriction can be imposed to preserve and protect forest wealth.
¶(29.) Hence, Zulu tribe does not have any right to hunt any wild species in that area as Malgudi
Wild Pigs have become endangered species and Forests Rights Act, 2006 does not give right
to hunt to the Zulu Tribe.
III. Parry International Pharmaceutical infringes patent on Avalox-

400
¶(30.) The Act provides that the patentee has exclusive right to prevent third parties from the
act of making, using, offering for sale, selling or importing.49 When the defendant challenged
the validity of the patent or counterclaimed for revocation, the burden of proving invalidity lies
on defendant.50 Consequently, it is humbly submitted before Hon’ble Supreme Court that first
Parry International infringed patent on Avalox-400 because first, Patent on Avalox-400 is valid
[A.]; and secondly Parry International Pharmaceutical Ltd infringed the terms of patent license
of Avalox-400 [B.].
A. Patent on Avalox-400 is valid
¶(31.) Law relating to patent operates on the three tests of patentability namely, novelty,
inventive step and industrial application and the same are to be satisfied for the purposes of
examining the patentability of the subject matter.51
¶(32.) It is humbly submitted before Hon’ble Supreme court that patent on Avalox-400 is valid
as first, Avalox-400 has Novelty [a]; secondly Avalox-400 is result of inventive step [b]; and
finally Avaox-400 have industrial application [c].
(a) Avalox-400 has Novelty

¶(32.) The fundamental principle of Patent Law is that a patent is granted only for an invention
which must be new and useful. That is to say, it must have novelty and utility.52 A valid patent
48
P. Leelakrishnan, Environmental Law in India, page no. 33 (Fourth edition, 2016, Lexis Nexis).
49
Patent Act 1970, (39 of 1970), Section 48.
50
Dick v. Tullis, (1896)13 RPC 149, Page no. 162; Ward Bros. v. James Hill (1901)18 RPC 481, Page no. 490.
51
Glaverbel S. A. v. Dave Rose and Ors., (2010) 167 DLT 6.
52
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511.
Page | 9
requires an invention to be new in the sense that on the date of filing of patent application, it
should not form a part of the state of art.53 The state of art comprises all matter made available
to the public before the priority date of the invention by written or oral description, or in other
way.54
¶(33.) It is not enough that the purpose was new or that there was novelty in the application,
so that the article produced was new in that sense but there must be novelty in the mode of
application. In adopting the old contrivance to the new purpose, there must be difficulties to be
overcome, requiring what was called invention, or there must be some ingenuity in the mode
of making the adoption.55 Mr. Ojel has to conduct a series of research about properties of the
plant poppy yew and he found out various medical use of it.56
¶(34.) For a claim to be anticipated, the prior disclosure must contain a clear describing of
something or clear and unambiguous directions to do or make something that would infringe
the claim if carried out after the grant of the patent. Where something within the claim had
been disclosed it did not matter that the disclosure was less preferred.57 Although it was known
that poppy yew plant has medical properties, it was ambiguous that for what purpose it can be
used i.e., specific kind of benefits.
¶(35.) The law does not prohibit grant of patents for medicines based on medicinal properties
or their extracts, provided they are new and innovative.58 Patent has been provided to traditional
Ayurvedic medicine, medicinal plants and herbal based formulation.59
¶(36.) New product in chemicals and especially pharmaceuticals may not necessarily mean
something altogether new or completely unfamiliar or strange or not existing force. 60 It may
mean something "different from a recent previous" or "one regarded as better than what went
before" or "in addition to another or others of the same kind". 61 Raw knowledge from tribal
which is verified, researched and clinical trials made in order to make a drug is patentable.62
53
V K Ahuja, Intellectual Rights in India, Page no. 458 (2nd Edition, 2015, Lexis Nexis).
54
A similar provision also be found in Article 54 of the European Patent Convention, 1973.
55
Rickmann v. Thierry, (1896) 14 RPC 105 (HL).
56
Moot proposition, ¶ 7.
57
General Tire Rubber Co. v. Fire Stone Tyre and Rubber Co. Ltd., [1972] RPC 457 at 485-486.
58
T. C. James; IPR issues related to medicinal and aromatic plants; J. Traditional and Folk Practices; Vol.
02,03,04(1); 2016; pg 7-17.
59
Ibid.
60
Justice P. S. Narayana, Intellectual Property in India, Page No. 23 (8th Edition, 2018, Anita B. Gogia).
61
Novartis AG & Ors. v. UOI & Ors, (2013) 6 SCC 1.
62
Indian Patent Application No. 8/Del/94(1994) (issued); Patent Application No. 959/MAS/96; Chaturvedi,
Sachin (2007) Kani Case. A Report for GenBenefit, Available at: www.uclan.ac.uk/genbenefit; Chennells, Roger
Page | 10
Traditional Knowledge of Zulu Tribe is used with research and clinical trials of OBT Co. Ltd.
to make patented drug Avalox-400.63
(b) Avalox-400 is result of Inventive Step

¶(37.) Bare reading of Section 2(ja) lays down the general test which is indicative towards
technological advancement over the existing knowledge and the non-obviousness of an
invention to a person skilled in art.64 If the alleged patent, constitutes known elements or a
combination of known elements the result must be new, or result in an article substantially
cheaper or better than what existed.65 Avalox-400 have inventive step as no person skilled in
art knows about use of poppy yew plant to make drugs.
(c) Avalox-400 have industrial application

¶(38.) Capable of Industrial application means that the invention is capable of being made or
used in an industry.66 Utility as meaning, an invention better than the preceding knowledge of
the trade as to a particular article.67 Avalox-400 has industrial application as it can be used to
make drug which have medical properties68 and it can even cure Black Death disease.69 Having
effect on disease indicates that it have industrial application. Therefore, it is humbly submitted
before this Hon’ble Court that patent on Avalox-400 is valid as it is a novel invention which
satisfies all condition of a valid patent.
B. PIP infringed the patent of Avalox-400
¶(39.) Any person who infringes the patent, i.e., who exercises any of the monopoly rights
conferred by the grant, may be sued for infringement.70 After 2005, drugs get both process &
product patent and thus now reverse engineering of product cause infringement of patented
product.71 PIP tried to produce Avalox-400 through reverse engineering methods in order to
gain as much profit as possible due to wide demand of the drug.72
(2007) San Hodia Case A Report for GenBenefit, available at:

www.uclan.ac.uk/research/explore/projects/assets/cpe_genbenefit_san_case.pdf.
63
Moot Proposition, ¶ 9.
64
F. Hoffmann-La Roche Ltd., Switzerland and OSI Pharmaceuticals, Inc., New Uork vs. Cipla Ltd., Mumbai
Central, Mumbai; (2012) 195 DLT 641.
65
Supra, 89.
66
Patent Act, 1970 (39 of 1970), Section 2(1)(ac).
67
Young and Neilson v. Rosenthal & Co.; (1884) 1 Pat. C. 1.
68
69
70
V K Ahuja, Intellectual Property Rights in India, (2nd edition, 2015, Lexis Nexis).
71
Dhar, Biswajit (2011) Effect of Product Patents on the Indian Pharmaceutical Industry, Center for WTO Studies
72
Page | 11
¶(40.) Even claim of urgent need of drug for infringement is rejected if patent is valid and thus
injunction is provided. Thus it is hereby submitted that PIP has infringed patent of Avalox-400
by reverse engineering the patented product.
Page | 12
PRAYER FOR RELIEF
In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:
1. Dismiss the writ petition filed by Florence International against OBT Co. Ltd. for
violation of fundamental rights of Zulu Tribe
2. Dismiss the appeal petition filed by Ministry of Tribals Affairs for violation of
rights under Forests Rights Act, 2006
3. Provide permanent injunction on PIP for manufacturing and distribution of Avalox-
400.
AND/OR
Pass any other order that this Hon’ble Court may deem fit in the interest of Justice, Equity and
Good Conscience.
All of which is most humbly prayed
On Behalf of
OBT Co. Ltd.
COUNSELS FOR THE RESPONDENT
Place: Indika
Date:
Page | 13

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NMC420

IN THE HONB’LE SUPREME COURT OF INDIKA

Case No. _____ of 2019

(Under Article 32 of the Constitution of India)

Florence International Petitioner

OBT Co. Ltd. Respondant

Clubbed with - Case No. _____ of 2019

(Under Article 133 of the Constitution of India)

Ministry of Tribal Affairs Appellant

OBT Co. Ltd. Respondent

Clubbed with - Case No. _______ of 2019

(Under Article 139A of the Constitution of India)

Parry International Pharmaceutical Ltd Petitioner

OBT Co. Ltd. Respondent

Memorandum filed on behalf of OBT Co. Ltd.

LIST OF ABBREVIATION ...................................................................................................... v

STATEMENT OF JURISDICTION...................................................................................... viii

STATEMENT OF FACTS ....................................................................................................... ix

SUMMARY OF ARGUMENT ...............................................................................................xii

ARGUMENTS ADVANCED ................................................................................................... 1

B. Rights of indigenous people under Article 19 are not violated ......................................... 1

C. No Rights violated under Article 21 of the Constitution .................................................. 3

D. Duty of the State towards Zulu Tribe................................................................................ 4

C. Zulu Tribe does not have right to hunt .............................................................................. 8

III. Parry International Pharmaceutical infringes patent on Avalox-400 ................................. 9

A. Patent on Avalox-400 is valid ........................................................................................... 9

(a) Avalox-400 has Novelty .......................................................................................... 9

(b) Avalox-400 is result of Inventive Step .................................................................. 11

(c) Avalox-400 have industrial application ................................................................. 11

B. PIP infringed the patent of Avalox-400 .......................................................................... 11

PRAYER FOR RELIEF .......................................................................................................... 13

Acts and Statutes

1. Constitution of India, 1950 .................................................................................... 12, 13

1. Indigenous and Tribal Populations Convention, 1957 (No. 107) .............................5

4. AIR All India Reporter

9. Cr.LJ Criminal Law Journal

10. Del Delhi

11. EC European Commission

13. Guj Gujarat

14. ICCPR International Convention on Civil and Political Rights,1966

15. ICESCR International Covenant on Economic, Social and Cultural

16. ILO International Labour Organisation

17. IP Intellectual Property

19. Mad Madras

20. No. Number

21. NWAP National Wildlife Action Plan

22. OBT Co. Ltd. Oreo Biotech Company Limited

23. Ori Orissa

24. Ors Others

25. p. Page No.

27. PAT Patna

28. PIP Parry International Pharmaceutical

29. PIL Public Interest Litigation

30. Raj Rajasthan

31. SC Supreme Court of India

32. SCC Supreme Court Reports

33. SCJ Supreme Court Journal

34. Sec. Section

35. Supp Supplementary

36. STFDA Scheduled Tribes and Forest Dwellers Act

37. TK Traditional Knowledge

38. u/a Under Article

39. UDHR United Nations Declaration on human rights