TEAM CODE: 23

2ND NAVRACHANA UNIVERSITY NATIONAL VIRTUAL MOOT COURT COMPETITION

BEFORE THE HONOURABLE HIGH COURT OF HIMA PRADESH

Under Article 226 of the Constitution of India

IN THE MATTER BETWEEN

ALPHA PHARMA PVT LTD (CLAIMANT)
V.
STATE OF HIMA PRADESH (RESPONDENT 1)
&
CONTROLLER OF PATENT (RESPONDENT 2)

MEMORANDUM FOR CLAIMANT

MEMORANDUM for CLAIMANT [TABLE OF CONTENTS]

TABLE OF CONTENTS

TABLE OF ABBREVIATION…………………………………………………………………. IV
INDEX OF AUTHORITIES…………………………………………………………………….VI
STATEMENT OF JURISDICTION……………………………………………………………...XI
STATEMENT OF FACTS……………………………………………………………………. XII
ISSUES RAISED……………………………………………………………..………………XIII
SUMMARY OF ARGUMENTS………………………………………………………………. XIV
ARGUMENTS ADVANCED…………………………………………………………..………. XV

I. Whether the invention of ‘Novak’ medicine satisfies the test of patentability

under Section 3 of the Patent 1970 or not?

[A]. The Invention of Novak medicine satisfies the test of patentability under §3 of the
Indian Patent Act, 1970 …………………………………………………………...………XV

[A.1] The three prerequisites of novelty, inventive step and industrial application
are adhered………………………………………………………………………...…...XV
[A.2] The invention is not a subject matter of non-patentability and does not fall
under §3 of the Act………………………………………………………………… XVIII

[B] Medicine Fulfils all the three Conditions indispensable for the test of
Patentability (Test of Efficacy)…………………………………………….…………… XIX

[B.1] Nature of Efficacy under § 3 (d)……………………………...………………XX

[B.2] Efficacy vis-à-vis Inventive step……………………………………..………XXI

[C] The Invention meets the statutory criteria for patent protection in relevance to
Traditional Knowledge………………………………………………………………… XXII

[C.1] Attainment of criteria outlined in India Patent act, 1970 corresponding to

Traditional Knowledge………………………………………………………………….XXII

[C.2] The balance of innovation and protection of Traditional

Knowledge………………………………………………………...…………………XXIV

II. Whether the company is liable to get compensation for arbitrary cancellation
of contract or not?

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MEMORANDUM for CLAIMANT [TABLE OF CONTENTS]

[A]. The Claimant Is Entitled to get compensation and revocation of patent was not
justified under section 25(2) of Indian Patent Act,1970………………………………XXV

[A.1] The Application made under §25(2) For post Grant Opposition of the Indian
Patent Act, 1970 Was Invalid…………………………………………………...………XXV

[A.2] The Revocation of Patent Was Invalid by The Controller Under Section
25(2) Of Indian Patent Act, 1970………………………………………………...……XXVII

[B] The Arbitrary Cancellation of Contract by Respondents Is Invalid, No Legal

Requirements Were Fulfilled…………………………………………………...……XXVIII

[B.1] No Prior Notice Was Provided for Cancellation of Contract. Mere Public
Outrage Cannot Be a Ground for Cancellation of Contract………………………XXVIII

[B.2] The Arbitrary Cancellation of Contract Led to Tarnished Reputation of The

Claimant & Also led to Huge Monetary Losses…………………………………………XXX

PRAYER FOR RELIEF ………………………………………………………..…………XXXIII

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MEMORANDUM for CLAIMANT [TABLE OF ABBREVIATION]

TABLE OF ABBREVIATIONS

& And

¶ Paragraph

§ Section

App. Cas. Appeal Case

Art. Article

C.G Central Government

Cl. Clause

CLAIMANT Alpha Pharma Pvt. Ltd

Co. Company

Ct. Court

First Govt. Of Hima Pradesh

Respondent

GOVT. Government

H.C High Court

Hon’ble Honourable

I.C. A Indian Contract Act

Id. Ibid.

i.e., That is

Inc. Incorporated

Ltd. Limited.

TBGRI Tropical Botanic Garden and Research Institute

2ND NAVRACHNA UNIVERSITY NATIONAL VIRTUAL MOOT COURT COMPETITION, 2023 IV | P A G E

MEMORANDUM for CLAIMANT [TABLE OF ABBREVIATION]

TK Traditional Knowledge

TRIP The Agreement on Trade-Related Aspects of Intellectual Property

Rights

No. Number

Ors. Others

Pvt. Private

Pg./ p Page

r/w Read with

S.C Supreme Court

S.C.C Supreme Court Cases

Second Respondent Controller Of Patent

Vis-a-Vis Face to Face

Vs./ V. Versus

Vol. Volume

2ND NAVRACHNA UNIVERSITY NATIONAL VIRTUAL MOOT COURT COMPETITION, 2023 V|P A G E
MEMORANDUM for CLAIMANT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

ARTICLES

S.N O . F UL L C I T AT I O N
Amiya Kumar Bagchi, Parthasarathi Banerjee, Uttam Kumar Bhattacharya, Indian
1. Patents Act and Its Relation to Technological Development in India: A Preliminary
Investigation,19, ECONOMIC AND POLITICAL WEEKLY, 287-289+292-295+298-304,
(1984).

Carlos M Correa, IS Section 3(D) Consistent With TRIPS,48, ECONOMIC AND

2. POLITICAL WEEKLY,49-52, (2013).

Efthimios Parasidis, A Uniform Framework for Patent Eligibility, 85 TUL. L. REV.

3. 323 (2010-2011).

H. Ashok Chandra Prasad, Shripad Bhat, Strengthening India's Patent System:

4. Implications for Pharmaceutical Sector,28, ECONOMIC AND POLITICAL
WEEKLY,1037-1058, (1993).

Hyewon Ahn, Pharmaceutical Invention, Innovations & Products, NOMOS

5. VERLAGSGESELLSCHAFT MBH,28-58, (2014).

Jay Erstling, Using Patents to Protect Traditional Knowledge, 15 TEX. WESLEYAN

L. REV. 295 (2008-2009).
6.
Jayashree Watal, Implementing the TRIPS Agreement: Policy Options Open to
7. India,32, ECONOMIC AND POLITICAL WEEKLY, 2461-2468, (1997).

Madhvi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP.

8. PROBS. 97 (2007).

9. Murray Lee Eiland, Patenting Traditional Medicine, NOMOS VERLAG

GESELLSCHAFT MBH,7-46, (2018).

10. Nicholas Eitsert, Indian Pharmaceutical Patenting Under Section 3(d): A Model for
Developing Countries, 12 IP THEORY 116 (2022).

Rajeev Dhavan, Lindsay Harris, Gopal Jain, Conquest by Patent: The Paris
Convention Revisited,32, JOURNAL OF THE INDIAN LAW INSTITUTE,131-178, (1990).
11.
Raju K D, Interpretation of Section 3(d) In the Indian Patents Act, 2005: A Case
12. Study of Novartis, INDIAN JOURNAL OF INTELLECTUAL PROPERTY LAW,1,7 (2008).

S.C. Gilfillan PH. D, Social Principles of Invention, 16 J. PAT. OFF. SOC’Y 832
(1934).
13.

2ND NAVRACHNA UNIVERSITY NATIONAL VIRTUAL MOOT COURT COMPETITION, 2023 VI | P A G E

MEMORANDUM for CLAIMANT [ INDEX OF AUTHORITIES]

Shamnad Basheer & T Prashant Reddy, The “Efficacy” Of Indian Patent Law:
14. Ironing Out the Creases In Section 3(d), 5, A JOURNAL OF LAW, TECHNOLOGY AND
SOCIETY, 232-266, (2008).

Shubha Ghosh, Traditional Knowledge Patent, and The New Mercantilism, 85 J.

15. PAT. & TRADEMARK OFF. SOC'y 828 (2003).

16. Wendy W. Yang, Patent Policy and Medical Procedure Patens: The Case for
Statutory Exclusion from Patentability, 1 B.U.J. SCI, & TECH.L.5, (1995).

BOOKS

S. N O . F UL L C I T AT I ON
C. BRADFORD BIDDL, JORGE L. CONTRERAS, BRIAN J. LOVE, NORMAN V.
1. SIEBRASSE, PATENT REMEDIES AND COMPLEX PRODUCTS: TOWARD A GLOBAL
CONSENSUS, (Cambridge University Press; New edition 19 May 2022).

DR. AJAY KUMAR PROF. A. LAKSHMINATH, EVERGREENING OF PATENTS,

2. (Satyam Law International; First Edition 2014).

DR. AVTAR SINGH, CONTRACT & SPECIFIC RELIEF, (Eastern Book Company 2021).
3.
4. DR M.B. RAO, MANJULA GURU, PATENT LAW IN INDIA, (Kluwer Law International
2010).

5. ELIZABETH VERKEY, LAW OF PATENTS, (Eastern Book Company 2019).

FEROZ ALI KHADER, THE LAW OF PATENTS- WITH A SPECIAL FOCUS ON

6. PHARMACEUTICALS IN INDIA, (Lexis Nexis Butterworths Wadhwa Nagpur 2009).

7. JOSEF DREXL, NARI LEE, PHARMACEUTICAL INNOVATION, COMPETITION AND

PATENT LAW, (Edward Elgar 2013).

8. KALYAN C KANKANALA, ARUN K NARASANI, VINITA RADHAKRISHNAN , INDIAN

PATENT LAW & PRACTICE,( Oxford University Press 2012).

9. PHILIP W. GRUBB , PETER R. THOMSEN, PATENTS FOR CHEMICALS,

PHARMACEUTICALS AND BIOTECHNOLOGY, (Oxford University Press; 5th edition
2010).

10. P NARAYANAN, INTELLECTUAL PROPERTY LAW, (Eastern Law House; 3rd edition
1 December 2020).

11. P NARAYANAN, PATENT LAW, (Eastern Law House 2006).

12. THOMAS F. COTTER, PATENT WARS, (Oxford University Press 2018).

2ND NAVRACHNA UNIVERSITY NATIONAL VIRTUAL MOOT COURT COMPETITION, 2023 VII | P A G E
MEMORANDUM for CLAIMANT [ INDEX OF AUTHORITIES]

13.
VISHNU S WARRIER, UNDERSTANDING LAWS: A LEGAL QUOTIENT PRIMER,
(LexisNexis's 2015).

14. WILLIAN J. MURPHY, JOHN L. ORCUTT, PAUL C. REMUS, PATENT VALUATION:

IMPROVING DECISION MAKING THROUGH ANALYSIS / EDITION 1, (Wiley 2012).

CASES

S. No. FULL CITATION

1. Abbott Healthcare Pvt. Ltd. V. Raj Kumar Prasad 2018 Scc Online Del 6657
(India).

2. Advocates-on-Record Association v. Union of India, 2015

SCC OnLine SC 1665(India).

3. Bayer Corporation v. Union of India, 2010 SCC OnLine Del 541 (India).

4. Biogen Inc. v Medeva Plc [1996] UKHL JI031 – 1 (UK).

5. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC

511(India).

6. Bengal Nagpur Cotton Mills v. Chatterjee AIR 1960 SC 367(India).

7. Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. (2010) 2 SCC 649 (India).

8. Dwarikesh Sugar Industries Ltd. v. Union of India (2016) writ petition No.
44371 of 2009(India).

9. Eli Lilly and Company v. Union of India (2013) 7 SCC 34 (India).

10. F. Hoffmann-LA Roche Ltd. v. Cipla Ltd., 2008 SCC OnLine Del 382 (India).

11. Gandhimati Appliances Ltd. v. LG Vandaraju 2001 S CLA 250 (India).

12. Gilead Sciences Ireland Uc v. Gopal Agrawal & Ors 2023 Dhc 4090 (India).

13. Glenmark Pharmaceuticals Ltd. v. Merck Sharp & Dohme Corpn., (2015) 6 SCC
807(India).

14. Natco Pharma Ltd. v. Bayer Corporation (2012) 9 SCC 63(India).

15. Novartis AG v. UOI, (2013) 6 SCC 1(India).

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MEMORANDUM for CLAIMANT [ INDEX OF AUTHORITIES]

16. R.G. Anand v. Delux Films AIR 1978 SC 1613(India).

17. Tata Cellular v. Union of India, (1994) 6 SCC 651(India).

STATUTES

S. NO. FULL CITATION

1.
Biological Diversity Act 2002, No. 18, 2003, Act of Parliament, (2002)

2. Constitution Of India 1950.

3. Companies Act ,2013, No 18, Act of Parliament,2013

4. Design Act 2000, No. 16,2000, Act of Parliament, (2000)

5. Indian Contract Act, No. 9, 1872, INDIA CODE, (1872).

6. Indian Patent Act 1970, No.39, 1970, Act of Parliament, (1970)

GUIDELINES & CONVENTIONS

S. NO. FULL CITATION

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRAI)
1. 1995
The Convention on Biological Diversity of 1992
2.
The Convention on International Trade in Endangered Species of Wild Flora and
3. Fauna of 1973

Guidelines for Examination of Patent Applications in the Field of

4. Pharmaceuticals,2014

Guidelines for Processing of Patent Applications Relating to Traditional

5. Knowledge and Biological Material

The Indigenous and Tribal Peoples Convention of 1989

6.
The Paris Convention for the Protection of Industrial Property of 1883.
7.

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MEMORANDUM for CLAIMANT [ INDEX OF AUTHORITIES]

8. The Patent Cooperation Treaty 1970

WEB SOURCES

S. NO. NAME OF THE SITE

1.
Economics Times
2.
Hein Online
3.
Intellectual Property India
4.
JSTOR
5.
Live Law
6.
Manupatra
7.
SCC Online
8.
Times Of India

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MEMORANDUM for CLAIMANT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The CLAIMANT has humbly approached the Hon’ble High Court of Hima Pradesh under
Article 226 of the Indian Constitution, 1872. And any relief sought or rendered shall be given
under §108 of the Indian Patent Act, 1970.

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MEMORANDUM for CLAIMANT [STATEMENT OF FACTS]

STATEMENT OF FACTS

Indiana, a South Asian nation, is a developing country with a population exceeding 1.25 billion.
In the state of Hima Pradesh, situated within the Kamlang forest, the Togso community, a
prominent semi-nomadic tribe, is celebrated for their profound knowledge of the region's
medicinal plants, relying on indigenous flora and fauna for generational traditional healthcare
practices.

The 'Peri' plant, native to the Eastern Ghat region, is a vital resource for the Togso community,
known for its energy-boosting, blood circulation-enhancing, and stamina-improving
properties.

The CLAIMANTS Alpha Pvt Ltd, a pharmaceutical company operating under the Company Act
2013, dispatched Dr. Simon, a renowned scientist, to the Eastern Ghat region to research
medicinal plants. This endeavor led to the creation of "Novak," a tablet derived from 'Peri'
leaves, for which they secured a patent on October 31, 2022, after extensive experimentation.

On April 1, 2023, Alpha Pvt. Ltd. established a new unit in the Eastern Ghat area through an
agreement with the Hima Pradesh government. Simultaneously, Unnati, an NGO dedicated to
safeguarding tribal community interests, raised concerns about potential commercial
exploitation and misuse of traditional knowledge, initiating an awareness campaign.

On July 1, 2023, the NGO formally opposed the 'Novak' patent by submitting a notice under
Section 25(2) of the Patent Act to the controller i,e. SECOND RESPONDENT, leading to the
patent's revocation.

Subsequently, the CLAIMANTS i,e. Alpha Pharma Pvt. Ltd. challenged the patent's revocation
in the High Court of Hima Pradesh, coinciding with growing public outrage over the
government's contract with the company on 5th July. On July 5, 2023, the government
announced the abrupt termination of their contract during a press conference.

On July 31, 2023, Alpha Pharma filed a writ under Article 226 of the Constitution in the High
Court of Hima Pradesh, contesting the state's arbitrary contract cancellation by the government
i,e. FIRST RESPONDENT without prior notice and seeking compensation for the damage to their
business reputation. They also alleged ulterior motives by both the NGO and the state in their
actions against the company

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MEMORANDUM for CLAIMANT [ISSUES RAISED]

ISSUES RAISED

A
Whether the invention of ‘Novak’ medicine satisfies the test of patentability under
Section 3 of the Patent 1970 or not?

Whether the company is liable to get compensation for arbitrary cancellation of

contract or not?

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MEMORANDUM for CLAIMANT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE A: Whether the invention of ‘Novak’ medicine satisfies the test of patentability
under Section 3 of the Patent 1970 or not?

The invention of “Novak” medicine by the CLAIMANT fulfils the standard applicability test
mentioned in §3 of the Indian Patent Act, 1970. The Invention fulfils the criteria of Novelty,
Inventive – step and Industrial Application. The invention meets the standard applicability test
of efficacy and does not fall under any of the clauses mentioned in § 3 of the said act. Along
with this the “Novak” medicine is in correspondence with the criteria mentioned for any
invention to be patentable under Traditional knowledge without harming the traditional
Knowledge and Culture of the country

ISSUE B: Whether the company is liable to get compensation for arbitrary cancellation of
contract or not?

The application made under section 25(2) of Indian patent Act,1970 was invalid as the NGO
was not ‘person interested ‘under the section 2(t) of The Patent Act. The arbitrary cancellation
of contract by the RESPONDENTS was “breach of contract” under Indian Contract Act,1872
no prior notice was provided before the termination of contract. The Arbitrary cancellation of
contract led to tarnished reputation of the CLAIMANT and also led to huge monetary losses.
Hence, the arbitrary cancellation of contract was invalid. Hence, the arbitrary cancaellation of
contract by RESPONDENTS was invalid and the company is entitled to get compensation.

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MEMORANDUM for CLAIMANT [ ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

ISSUE–I WHETHER THE INVENTION OF NOVAK MEDICINE SATISFIES THE

TEST OF PATENTABILITY UNDER SECTION 3 OF THE PATENT 1970 OR NOT?

1. The CLAIMANT i.e, Alpha Pharma Pvt Ltd. is an Indian Company1. It is incorporated in
India as per the law i.e, The Companies Act, 20132 and therefore necessarily have their
assets situated in India. Hence, enforcement of any relief rendered from the proceeding
will be sought under the Patent Act (“Patents Act, 1970”).3 In the present case, it is
submitted that the invention of Novak Medicine by the CLAIMANTS satisfies the test of
Patentability under Section 3 of the Patents Act 19704 [A]. In This case the Medicine
Fulfils all the Conditions indispensable for the test of Patentability (Test of Efficacy)
[B]. The Invention meets the statutory criteria for patent protection in relevance to
Traditional Knowledge[C].

A. THE INVENTION OF NOVAK MEDICINE SATISFIES THE TEST OF PATENTABILITY

UNDER §3 OF THE INDIAN PATENT ACT, 1970.

2. The CLAIMANTS invention come under the purview of invention define as per the Indian
Patent Law, 1970. The invention satisfies the test of patentability as FIRSTLY, the three
perquisites of novelty, inventive step and industrial application, are adhered [A.1]
SECONDLY, the invention is not a subject matter of non-patentability and does not fall
under §3 of the Act [A.2].
[A.1] THE THREE PREREQUISITES OF NOVELTY, INVENTIVE STEP AND INDUSTRIAL
APPLICATION ARE ADHERED.

3. As per § 2(1) (l) of the Patent Act, 19705 an invention is a “new invention” (possesses
novelty) in India determined as any invention or technology which has not been
anticipated in any document or used in the country or elsewhere in the world before the
date of filing of patent application with complete specification. For any patent to be
patentable it is very essential for the required subject to be Novel.

1
CASE RECORD.
2
The Companies Act, 2013, § 3, No. 18, Acts of Parliament, 2013 (India).
3
The Patent Act, 1970, § 108, No. 39, Acts of Parliament, 1970 (India).
4
Id at § 3.
5
Id at § 2(1)(l).

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MEMORANDUM for CLAIMANT [ ARGUMENTS ADVANCED]

4. Article 27.16 of the TRIPS, provides for the availability of patents for all
products/processes without discrimination, provided they satisfy the three patentability
criteria of novelty, inventive step and utility. § 10(4) of the Indian Patent Act, 19707
connotes that the invention must have practical utility or industrial applicability.
5. The concept of novelty in patent law embodies the principle that truly new inventions
deserve patent protection. It is pertinent to note that the invention made by the
CLAIMANT of the tablet “Novak” was a completely new invention. 8 The notion of
Novelty unravels the idea of “new compared to prior art” an invention somehow must
be different from all published techniques and marketed products.
6. The fundamental principle of patent law is that a patent is granted only for an invention
which must have novelty and utility. It is essential that it must be the inventor’s own
discovery. An invention to be patentable it has to be useful in addition to being a new
manufacturer.9 As per § 2(1)(j)10 of the Indian Patent Act, for a subject to be patent it
must be a new product or process involving an inventive step and capable of industrial
application.11
7. For evaluating whether the concerned subject involved inventive step it should be seen
that whether the invention was an obvious modification of prior art or involved a non-
obvious solution to a technical problem.12
8. The notion of inventive step states that there should be an involvement of technical
advancement as compared to the existing knowledge13. Whenever anything inventive
is done for the first time it is the result of the addition of a new idea to the existing stock
of knowledge.14 Inventive step requires that there must be technical advancement as
compared to prior art.15

6
Article 27.1, TRIPS Agreement, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).
7
The Patent Act, 1970, § 10(4), No. 39, Acts of Parliament, 1970 (India).
8
CASE RECORD.
9
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511(India)
[Hereinafter “Bishwanath”].
10
The Patent Act, 1970, § 2(1)(j), No. 39, Acts of Parliament, 1970 (India).
11
F. Hoffmann-LA Roche Ltd. v. Cipla Ltd., 2008 SCC OnLine Del 382 (India)[Hereinafter
“Cipla“].
12
Eli Lilly and Company v. Union of India (2013) 7 SCC 34 (India).
13
Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. (2010) 2 SCC 649 (India).
14
Biogen Inc. v Medeva Plc [1996] UKHL JI031 – 1 (UK).
15
Bayer Corporation v. Union of India, 2010 SCC OnLine Del 541 (India)[ Hereinafter
“Bayers”].

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MEMORANDUM for CLAIMANT [ ARGUMENTS ADVANCED]

9. A new invention may consist of a new a new combination of all integers so as to

produce a new or important result or may consist of altogether new integers. It is
pertinent to mention that the invention of ‘Novak’ medicine was all together a new
invention result of independent research carried on by the Scientists.16 The extensive
research led them to the development of the medicine and was of more effect than the
raw Peri leaves.
10. As per § 2(1) (ja)17 of the India Patent Act, 1970 corroborates the notion that an
inventive step is a feature of an invention that involves a technical advancement as
compared to the existing knowledge or having economic significance or both. The
respondents alleges that the cancellation of Patent was done on the foundation that the
patent obtained was not an invention, however, it is evident from the definition of
inventive step given under the Patent act that there must be technical advancement
involved.
11. It is pertinent to mention any subject matter to be patentable, the improvement or the
combination must produce a new result18 as per the case record the ‘Novak’ medicine
was a result of an independent research and extensive experiments. The ‘Novak’
medicine involved technical advancements and newness and was non-obvious.
12. Combination of known integers will qualify for a patent if it can be shown that the
improvement was not hitherto known, and that such improvements was new and
useful.19 As per the case record the invention was a result of an independent research
conducted by the scientist and the tablet was claimed to be much faster in its effect of
increasing the stamina.
13. As per § 2(1)(ac) of the India Patent Act, 1970 industrial application is defined in
relation to an invention as an invention which is capable of being made or used in
Industry. An industry must be able to use it. As per article 3320 of the Patent Cooperation
Treaty, for a claim to be patentable it must be technically feasible for use in any
industry.

16
CASE RECORD.
17
The Patent Act, 1970, § 2(1)(ja), No. 39, Acts of Parliament, 1970 (India).
18
Bishwanath, supra note at 9.
19
Gandhimati Appliances Ltd. v. LG Vandaraju 2001 S CLA 250 (India).
20
Patent Cooperation Treaty, 1970.

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MEMORANDUM for CLAIMANT [ ARGUMENTS ADVANCED]

14. Commercial use of the subject is required, the claim must be economically feasible.21
To determine the medicinal ingredient in the industrial sector high court of Delhi replied
upon the criterial established by UK court of appeals.22
15. The claimed invention must reveal a practical application and should be used in
industrial practise.23 The claimed material must be reproducible or exploitable. It is
pertinent to note that Novak medicine fulfils all the specified criterial required for
industrial applicability.
16. The Indian Patent Act, 1970 ensures that patents are granted for inventions that are not
only novel but also have practical utility and can be used or made in an industrial or
Commercial setting.
[A.2] THE INVENTION IS NOT A SUBJECT MATTER OF NON-PATENTABILITY AND DOES
NOT FALL UNDER §3 OF THE ACT.

17. As per § 3(c)24 of the Indian Patent Act, 1970 for an invention to be an invention and
not mere discovery of naturally occurring substance an active human intervention must
be involved that changes the structural or chemical feature of a naturally occurring
element.25 It is material to note that after extensive research and experiments performed
by the scientist the Medicine was invented hence, a clear intervention of human is
involved.26
18. One of the clauses of § 3 i.e, §3 (d)27 of the Indian Patent Act, 1970 states that mere
discovery of new form of known substance which does not result in the enhancement
of the known efficacy does not constitute an invention.28 It is pertinent to note that the
section demands for enhanced efficacy of the substance i.e. if the parent compound was
therapeutic (herein ‘effective’) then the follow-up derivative or the compound must
work better in treating the same disease.

21
Cipla, Supra note at 11.
22
Glenmark Pharmaceuticals Ltd. v. Merck Sharp & Dohme Corpn., (2015) 6 SCC
807(India).
23
Bishwanath, supra note at 9.
24
The Patent Act, 1970, § 3(c), No. 39, Acts of Parliament, 1970 (India).
25
Gilead Sciences Ireland Uc v. Gopal Agrawal & Ors 2023 Dhc 4090 (India).
26
CASE RECORD.
27
The Patent Act, 1970, § 3(d), No. 39, Acts of Parliament, 1970 (India)[Hereinafter “Act”].
28
Bayers, Supra note at 15.

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MEMORANDUM for CLAIMANT [ ARGUMENTS ADVANCED]

19. As per the case record it is explicit from the facts that the invention of “Novak”
medicine by the CLAIMANT was an enhanced version of the Peri leaves they were
proved to be must faster in effect and increased the stamina more than the raw eating
of the leaves.29
20. For a substance to be patentable it must include an inventive step and Novelty and
utility, however § 3(e) states that a substance is non-patentable if it is obtained by a
simple mixture or a process for producing such a substance.30 It is material to note that
this clause is invoked when all the components of the composition are previously
known.
21. The invention of Novak medicine constituted an inventive step as per the case record
the scientist conducted their own independent research and after extensive research
invented the medicine hence the composition is novel and the clause cannot be
applied.31
22. As per § 3(i), of the Indian Patent Act, 197032 a process or a method of treatment of
human beings or animals to render them free of a disease is non-patentable, however
any method of treatment which improves the physical appearance of an individual and
does not cure any disease, is patentable.
23. It is pertinent to mention that the Medicine “Novak” was used for increasing the
stamina of the body rather than curing any medical ailment,33 as per the fact mentioned
in the case record it is explicit to note that the Invention does not fall under the clause
(i) of §3 of the Indian Patent Act, 1970.
24. Any subject matter that is traditional knowledge or an aggregation or duplication of
known properties of traditionally known component are non- patentable and will not be
considered as an invention under §3(p)34 of the Indian Patent Act, 1970. However, there
are certain criteria which allow an invention involving traditional knowledge to be
patentable i, e. the notion of Novelty and Inventive step.
25. As per the case record the Invention made by the CLAIMANTS did involve traditional
knowledge but the invention was a result of an extensive research and experiments

29
CASE RECORD.
30
Novartis AG v. UOI, (2013) 6 SCC 1(India)[Hereinafter “Novartis”].
31
CASE RECORD.
32
The Patent Act, 1970, § 3(i), No. 39, Acts of Parliament, 1970 (India).
33
CASE RECORD.
34
The Patent Act, 1970, § 3(p), No. 39, Acts of Parliament, 1970 (India).

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conducted by the experts in that field. The invention does fulfil the criterial of novelty
and enhanced efficacy.
B MEDICINE FULFILS ALL THE THREE CONDITIONS INDISPENSABLE FOR THE TEST
OF PATENTABILITY (TEST OF EFFICACY).

26. The CLAIMANTS invention fulfils all the three conditions indispensable for the test of
patentability (test of efficacy) as it corresponds with the standard patent applicability
under the criteria of FIRSTLY, Nature of Efficacy under § 3 (d) [B.1] SECONDLY,
Efficacy vis-à-vis as an inventive step [B.2].
[B.1] NATURE OF EFFICACY UNDER § 3 (d)

27. Efficacy is a pivotal concept under § 3(d)35 of the Indian Patent Act, 1970 the ‘efficacy’
factor forms the sub-stratum of tests (of patent-eligibility and patentability) relevant in
context of pharmaceutical and agrochemical inventions. The section specifically
addresses the requirements of enhanced efficacy for these inventions.
28. For any claim to be patent it must demonstrate “enhanced efficacy” over the known
substance.36 The interpretation of efficacy in the field of pharmacology states “efficacy”
as the ability of a drug to produce the desired therapeutic effect and “therapeutic” as
“healing of disease”.37
29. Enhanced efficacy involves an external patentability test of non-obviousness/inventive
step, but also another external patentability test of utility.38 Considering a new
pharmaceutical product which is a substance with known efficacy, it must be noted that
it must pass § 2(1)(j)39 2(1)(ja)40 and the test of enhanced efficacy under the purview of
section 3(d)41 of the Act.
30. Therapeutic efficacy must be taken seriously and must be given a narrow and strict
analysis, and such is construed on external as well as internal factors. 42 There may be

35
Act, Supra Note at 27.
36
Shamnad Basheer & T Prashant Reddy, The “Efficacy” Of Indian Patent Law: Ironing Out
The Creases In Section 3(d), 5, A JOURNAL OF LAW, TECHNOLOGY AND SOCIETY, 232-266,
(2008) [Hereinafter “Basheer”].
37
Novartis, Supra note at 30.
38
Basheer, Supra Note at 36.
39
The Patent Act, 1970, § 2(1)(j), No. 39, Acts of Parliament, 1970 (India).
40
Id at § 2(1)(ja).
41
Id at § 3 (d).
42
Novartis, Supra note at 30.

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multiple properties in the newer substance which may be beneficial or may have certain
advantages to it but the properties that are promptly correlated to efficacy are only to
be considered relevant.43
31. § 2(1)(j) of the Patent Act, 1970 has clearly stated that invention is only when there is
either a new produce or process has enough inventive step it and is also capable of
industrial application. The law and purpose behind such laws is that a patent should
only be granted to the applicant when the invention of the said product has been found
to be new and useful, it is also important for the invention to have utility and novelty.44
32. Inventions made in pharmaceuticals does not imply that it has to be something
completely new or something unaccustomed or something that has never existed before,
but it has to be something diverse from a previous invention or it has to be better than
what was invented before.
33. It is material to mention that the effect of novak medicine was different from the effect
of the raw consumption of Peri leaves. The invention involved enhanced efficacy in
significance to applicability of Inventive step.45
34. The test of efficacy is crucial aspect of patent examination in pharmaceutical sector,
with the aim of promoting true innovation and access to essential medicines.46 The test
of efficacy in Section 3(d) is designed to strike a balance between encouraging genuine
pharmaceutical innovations and ensuring that essential medicines remain accessible
and affordable to the public.

[B.2] EFFICACY VIS-À-VIS INVENTIVE STEP

35. The primary requirement for the applicability of Efficacy is that there should be
documented data substantiating the claim of enhanced efficacy. The data should be
based on scientific or technical information that demonstrates the improved therapeutic
effects or benefits of the new form or use.
36. Efficacy and inventive step are Inter related. They are often used in the context of
Pharmaceutical and chemical inventions. To qualify for a patent, a new form or use of

43
Abbott Healthcare Pvt. Ltd. V. Raj Kumar Prasad 2018 Scc Online Del 6657 (India).
44
Dr. ParthaPratim Paul, Novelty-As Qualifier of Patentability vis-à-vis Relevancy of Section
3(d) Of Patent Act: A Critical Analysis of Indian Approach, 9 INDIAN JOURNAL OF LAW AND
JUSTICE, 62, (2018).
45
CASE RECORD.
46
Cipla, Supra note at 11.

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a known substance must demonstrate "enhanced efficacy." This means it should exhibit
a significant improvement in therapeutic efficacy, showing a clear and measurable
advantage over the known substance.47
37. The term "efficacy" in this context primarily relates to the therapeutic or medical
effectiveness of the invention. It's about proving that the new form or use of the known
substance provides a substantial and practical therapeutic benefit.
38. In the pharmaceutical field, the concepts of efficacy and inventive step overlap. This is
because demonstrating enhanced efficacy often aligns with the requirement for an
inventive step.48 the enhanced therapeutic efficacy demonstrates that the invention goes
beyond a mere optimization or routine development, thereby meeting the requirement
of non-obviousness or inventive step.49
39. A patentable combination is one in which the component elements are so combined as
to produce a new result or arrive at an old result in a better or more expeditious or
more economical manner. If the result produced by the combination is either a
new article or a better or cheaper article than before, the combination may afford
subject-matter of a patent.
40. Pharmaceutical invention which shows that a new formulation, use, or modification of
a known substance significantly enhances therapeutic efficacy, it not only fulfills the
efficacy requirement but also signifies a non-obvious and innovative aspect of the
invention.
41. Efficacy is considered not only for its intrinsic value but also as an element of inventive
step. To establish an inventive step, it's often necessary to demonstrate that the
invention provides a practical and non-obvious solution to a problem, and the improved
efficacy of the invention can be a key indicator of its non-obvious nature.

C. THE INVENTION MEETS THE STATUTORY CRITERIA FOR PATENT PROTECTION IN

RELEVANCE TO TRADITIONAL KNOWLEDGE.

42. The Invention made by the CLAIMANTS does not come under the purview of Traditional
Knowledge because the invention Attains criteria outlined in India Patent act, 1970

47
Novartis, Supra note at 30.
48
Id at note 47.
49
Cipla, Supra note at 11.

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corresponding to Traditional Knowledge [C.1] and there is the balance of innovation

and protection of Traditional Knowledge [C.2].

[C.1] ATTAINMENT OF CRITERIA OUTLINED IN INDIA PATENT ACT, 1970

CORRESPONDING TO TRADITIONAL KNOWLEDGE.

43. As per the documented data provided by the Government of India on the notion of
Traditional knowledge any Subject matter which falls withing the ambit of §3(p)50 of
the Indian Patent act, 1970 and involves Traditional Knowledge is non-patentable.
44. The question, for instance, whether the invention falls under this section on not depends
upon certain standard patentability requirements which are to be fulfilled in order to
ensure that the invention is patentable even after having the notion of Traditional
Knowledge involved in it.51
45. It is pertinent to note that one of the standard requirements seen while assessing the
patentability of a subject matter is that its enhanced efficacy.52 The invention should
demonstrate a significant enhancement in efficacy compared to traditional Knowledge
or practices.53
46. As per the facts from the case record it is material to note that the CLAIMANTS invention
was much more efficient than the raw eating of the Peri leaves and were faster in its
effect.54 The extensive research makes it clear that the Invention involved therapeutic
efficacy.
47. Another patentability requirement for an invention to be patentable is that is must be
non-obvious. The application of traditional knowledge in the medicine should involve
a non-obvious advancement beyond traditional practices.55 It should not be something
that would be obvious to a skilled person in the field based on prior knowledge or
existing practices.

50
The Patent Act, 1970, § 3(p), No. 39, Acts of Parliament, 1970 (India).
51
Madhvi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP. PROBS. 97
(2007).
52
Basheer, Supra Note at 36.
53
C. Niranjan Rao, Patents for Biotechnology Inventions in TRIPs,37, ECONOMIC AND
POLITICAL WEEKLY, 2126-2129, (2002)
54
CASE RECORDS.
55
Murray Lee Eiland, Patenting Traditional Medicine, NOMOS VERLAGSGESELLSCHAFT
MBH,7-46, (2018)

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48. The involvement of Specific formulation or process is one of the standard requirements.
The invention should involve a specific and well-defined formulation, process, or
application of traditional knowledge that goes beyond general or traditional usage. 56 It
should represent an innovative and non-obvious development.
49. It is material to note that the invention made by the CLAIMANTS involved a well-defined
formulation and process required to make the tablet. The invention was non-obvious
and required expertise in that field.57 The enhanced efficacy of the tablet was a result
of this specified formulation and process which makes it evident that the application of
Traditional knowledge goes beyond general usage.
50. The invention must have practical utility and industrial applicability.58 The subject
matter should serve a useful purpose in the pharmaceutical or medical field. The
“Novak” medicine invented by the CLAIMANTS was one of the most useful inventions
for energy boosting and increasing the stamina and became one of the bestselling
medicines making huge profits for the CLAIMANTS.59
51. The invention made by the CLAIMANTS qualifies to be a patentable subject matter and
it genuinely provides practical benefit and advancement in the field of Pharmaceutics.

[C.2] THE BALANCE OF INNOVATION AND PROTECTION OF TRADITIONAL KNOWLEDGE.

52. The criteria mentioned for the standard patentability test is important in order to balance
the need for innovation and protection of traditional Knowledge. The notion behind this
concept is that traditional Knowledge is acknowledged and respected.
53. The balance of innovation and protection of Traditional knowledge depends upon the
Evidence of Innovation.60 Documentation of Proper evidence and explanation that
demonstrates the innovative nature of the invention along with research data or
comparative analyses that establish the improved therapeutic effects of the invention.61
54. Recognition and acknowledgement of the source of traditional knowledge, particularly
of it originates from a specific community or indigenous group.

56
C. Niranjan Rao, Patents for Biotechnology Inventions in TRIPs,37, ECONOMIC AND
POLITICAL WEEKLY, 2126-2129, (2002)
57
CASE RECORD.
58
S.C. Gilfillan PH. D, Social Principles Of Invention, 16 J. PAT. OFF. SOC’Y 832 (1934).
59
CASE RECORD.
60
Margo A.Bagley, The New Invention Creation Activity Boundary in Patent Law, 51 WM. &
MARY L. REV. 577 (2009-2010).
61
Shubha Ghosh, Traditional Knowledge Patent, and The New Mercantilism, 85 J. PAT. &
TRADEMARK OFF. SOC'y 828 (2003)

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55. The invention by the CLAIMANTS served public interest by promoting innovation,
economic development and improved access to healthcare. Novak became one of the
bestselling medicines by the CLAIMANTS Company.62
56. The invention no where harmed the traditional knowledge or cultural significance of
the knowledge on the contrary with the formulation of medicine there was improved
access to the healthcare along with economic development in the pharmaceutical sector.
57. While seeking patent for invention based on traditional knowledge, it is crucial that the
significant innovation demonstrates enhanced efficacy, and a non-obvious
advancement in the application of that knowledge.63 The invention of Novak Medicine
by the CLAIMANTS was comprehensive, transparent and respectful of the sources of the
traditional knowledge. Additionally meeting all the prerequisites required an Invention.

ISSUE 2 – WHETHER THE COMPANY IS LIABLE TO GET COMPENSATION FOR

ARBITRARY CANCELLATION OF CONTRACT OR NOT?

58. The CLAIMANT i.e., Alpha Pharma Pvt. Ltd. Is an Indian Company 64. It is incorporated
in India as per the law i.e. The Companies Act,2013 65 and necessarily have their assets
situated in India. In the present case, it is submitted that the CLAIMANT is liable to get
compensation for arbitrary cancellation. Alpha Pharma Ltd. Is entitled to get
compensation and the revocation of the patent was not justified [A]. The arbitrary
cancellation of contract by government is not valid and no legal requirements were
fulfilled, hence the company is entitled for compensation [B].
A. THE CLAIMANT IS ENTITLED TO GET COMPENSATION AND REVOCATION OF PATENT
WAS NOT JUSTIFIED UNDER SECTION 25(2)66 OF INDIAN PATENT ACT,1970.

59. The CLAIMANT is Entitled to get compensation and revocation of patent was not
justified under § 25(2) of the Indian Patent Act, 1970 because FIRSTLY, the application
made under § 25(2) of Indian Patent Act, 1970 for the post grant opposition of the

62
CASE RECORDS.
63
Basheer, Supra Note at 36.
64
CASE RECORD.
65
The Companies Act, 2013, § 3, No. 18, Acts of Parliament, 2013 (India).
66
The Patent Act, 1970, § 25(2), No. 39, Acts of Parliament, 1970 (India).

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Indian patent act, 1970 was Invalid [A.1] SECONDLY The Revocation of Patent Was
Invalid by The Controller Under Section 25(2) Of Indian Patent Act, 1970 [A.2].

[A.1] THE APPLICATION MADE UNDER §25(2) FOR POST GRANT OPPOSITION OF THE
INDIAN PATENT ACT, 1970 WAS INVALID.

60. As per § 25 sub clause (2)67of Indian patent Act, 1970 at any time after the grant of
patent but before the expiry of a period of one year from the date of publication of grant
of a patent, any person interested may give notice of opposition to the Controller. The
definition of “person Interested”. As per the case record the NGO gave a notice of post-
grant opposition to patent given to ‘Novak’ to the controller of the Patent under section
25(2) of Indian Patent Act, 1970 on 1st July 2023.68
69
61. As per the definition clause under section 2(t) of the Indian Patent Act, 1970 the
definition of “person interested” includes a person engaged in, or in promoting, research
in the same field as that to which the invention relates. The question pertinent to same
section is that whether “NGO” will be included in ‘person interested’. The NGO will
not be included in the person interested in accordance with the definition. Hence, the
acceptance of application was not valid as it was not complied with the definition of
person interested.
62. The tablet Novak was an invention within the meaning of this Act. An invention, within
the meaning of a patent act, is a novel and non-obvious creation or innovation that
provides a new and useful solution to a technical problem. It can be a new process,
product, or a significant improvement on an existing process or product. The tablet
Novak was an invention as it was novel and it was new as it was not been disclosed or
publicly available anywhere in the world.
63. This case is a landmark judgment by the Supreme Court of India and is often cited as a
foundational case for the concept of novelty in Indian patent law. The court held that
an invention must be novel, which means it should not have been anticipated or
disclosed in prior publications or public knowledge.70

67
Id.
68
CASE RECORD.
69
The Patent Act, 1970, § 3(t), No. 39, Acts of Parliament, 1970 (India).
70
Biswanath,supra note at 9.

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64. As per case record71 the scientist deputed conducting research on medicinal plants, they
conducted independent research and the tablet they made was claimed to be much faster
in its effect of increasing stamina, than the raw eating of peri leaves. The tablet Novak
was an invention as it includes inventive step and the process of making a tablet from
the plant in itself an inventive step. Hence, revocation of patent was not valid.
65. In this landmark case, Natco Pharma applied for a compulsory license to manufacture
a generic version of Bayer's patented drug "Nexavar," used to treat kidney and liver
72
cancer. The case involved a detailed analysis of Section 25(2) of Indian Patent Act,
1970 and the issuance of compulsory licenses in the interest of public health. The court
granted the compulsory license, emphasizing affordability and access to medicines for
the general public.73

[A.2] THE REVOCATION OF PATENT WAS INVALID BY THE CONTROLLER UNDER

SECTION 25(2) OF INDIAN PATENT ACT, 1970.
66. §25(2) of Indian Patent Act, 1970 states that at any time after the grant of patent but
before the expiry of a period of one year from the date of publication of grant of a
patent, any person interested may give notice of opposition to the Controller. As proven
in the above sub-contention that ‘NGO’ does fall under the ambit of ‘person interested’.
Hence the acceptance of application of post-grant opposition was not valid. Hence the
revocation of patent was not valid.
67. The grounds under § 25(2)(a)74 for revocation of patent states that the patentee or the
person under or through whom he claims, wrongfully obtained the invention or any part
thereof from him or from a person under or through whom he claims, the CLAIMANT
here doesn’t claim or obtained the invention from any person, as per case record the
company disclosed that they have invented an altogether new product from Peri Leaves.
68. This case involved a dispute related to compulsory licenses for the patent covering the
drug "Sorafenib Tosylate." The court discussed the requirements under § 25(2) for
granting a compulsory license, including the fact that the patentee should not have
worked the invention to the fullest extent in India. The court emphasized the importance

71
CASE RECORD.
72
The Patent Act, 1970, § 25(2), No. 39, Acts of Parliament, 1970 (India).
73
Natco Pharma Ltd. v. Bayer Corporation (2012) 9 SCC 63 (India).
74
The Patent Act, 1970, § 25(2(a), No. 39, Acts of Parliament, 1970 (India).

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of making patented inventions available to the public and ensuring affordable access to
essential medicines.75
76
69. As per § 25(2)(e) of Indian Patent Act, 1970 that the invention so far as claimed in
any claim of the complete specification is obvious and clearly does not involve any
inventive step, having regard to the matter published as mentioned in clause (b) or
having regard to what was used in India before the priority date of the claim, in
accordance with this § the Novak was an invention within the meaning under this Act
and it was not used before the priority date of claim.
70. As per § 25(2)(f) 77that the subject of any claim of the complete specification is not an
invention within the meaning of this Act, or is not patentable under this Act; The tablet
‘Novak’ was invention within the meaning of this act and was patentable.
71. As per § 25 (2)(g) 78 of Indian Patent Act, 1970 that the complete specification does not
sufficiently and clearly describe the invention or the method by which it is to be
performed here the CLAIMANT clearly described the invention and also the product used
by them. Hence the revocation of patent under this ground would be invalid. As per
79
§(3)(a) any such notice of opposition is duly given under sub-section (2), the
Controller shall notify the patentee.
72. As per case record the controller of patent revoked the patent immediately the controller
has to comply with procedure laid in § (3) 80of Indian Patent Act,1970 before revocation
of contract. SECOND RESPONDENT did not comply with the requirement under section 3
of Indian Patent Act,1970. No duly notice were provided to the CLAIMANT for the
opposition of patent.
73. As per § (4) of Indian Patent Act,1970 81an opportunity of being heard shall be given
to the patentee the only the controller can amend or revoke the patent. As per case
record the SECOND RESPONDENT did not provide enough opportunity of being heard to
the CLAIMANT and immediately after the application revoked the Patent.

75
Bayers, Supra note at 15.
76
The Patent Act, 1970, § 25(2)(e), No. 39, Acts of Parliament, 1970 (India).
77
The Patent Act, 1970, § 25(2(f), No. 39, Acts of Parliament, 1970 (India).
78
The Patent Act, 1970, § 25(2)(g), No. 39, Acts of Parliament, 1970 (India).
79
The Patent Act, 1970, § 3(a), No. 39, Acts of Parliament, 1970 (India).
80
The Patent Act, 1970, § 3, No. 39, Acts of Parliament, 1970 (India).
81
The Patent Act, 1970, § 4, No. 39, Acts of Parliament, 1970 (India).

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B THE ARBITRARY CANCELLATION OF CONTRACT BY RESPONDENTS IS INVALID,

NO LEGAL REQUIREMENTS WERE FULFILLED.
74. The arbitrary cancellation of contract by RESPONDENTS is invalid no legal requirements
were FIRSTLY No prior notice was provided for cancellation of contract by government
because mere public outrage cannot be a ground for cancellation of contract [B.1]
SECONDLY the arbitrary cancellation of contract led to tarnished reputation of
CLAIMANT and also led to huge monetary losses. [B.2].

[B.1] NO PRIOR NOTICE WAS PROVIDED FOR CANCELLATION OF CONTRACT.

MERE PUBLIC OUTRAGE CANNOT BE A GROUND FOR CANCELLATION OF
CONTRACT.
75. The Supreme Court warned that if a public authority arbitrarily goes about rescinding
agreements of its predecessor, merely citing public interest or loss to treasury without
proving the same with evidence, businesses will be reluctant to enter into government
contracts or make investments on promises made by a government. 82
76. As per case record the termination of contract by government of state is a breach of
contract from the side the side of government as no prior notice for termination were
provided by the respondent i.e., state of Hima Pradesh to CLAIMANT. A contract to
which the Central Government or a State Government is a party is called a ‘Government
Contract’.
77. A Government Contract, like other contracts, is governed by the Indian Contract Act,
but it is distinct. A Government Contract must conform with the stipulations of Article
83
299 in addition to the requirements of the Indian Contract Act, such as offer,
acceptance, and consideration. Hence, the liability of the government will be the same
as in the case of normal contract under Indian Contract Act,1872.84
85
78. The Supreme Court observed that the government should be given the freedom to
enter into a contract but this freedom should be subject to the test of reasonableness and
should also be free from any arbitrariness.

82
Bruce Pardy, Cancelling Contracts: The Power of Governments to Unilaterally Alter
Agreements, FRASER INSTITUTE,7, (2014).
83
INDIA CONST. art. 299.
84
The Indian Contract Act,1872, No. 9, 1872, INDIA CODE, 1872 (India).
85
Tata Cellular v. Union of India, (1994) 6 SCC 651 (India).

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79. As per case record the respondent i.e. In the State of Hima Pradesh, after noticing the
huge public outcry over the contract made by the government of state with Alpha
pharma, the Government in a press conference announced that it is terminating the
contract of factory set-up citing the larger public interest. It is pertinent to note that the
state of Hima Pradesh cancelled the contract on mere public outrage without fulfilling
contractual obligations and without giving reasonable notice to the company.86
80. The respondent i.e., the government of Hima Pradesh arbitrarily used their powers and
terminated the contract there is general procedure to terminate the contract which shall
be followed before terminating the contract. Firstly, determination the grounds for
termination as per case record the respondents breached the contract because of
arbitrarily cancellation of contract.
81. Secondly, if the contract requires notice of termination, a written notice must be
prepared in which there shall be clearly grounds for termination, shall mention specific
clause or provision of the contract allowing for termination of contract, state the
effective date of termination & thirdly, the notice must be served to the other party for
termination of contract.
82. As stated in above point that there shall be adherence to procedure for termination of
contract the respondents i.e., government of state failed to comply with the requirement.
Hence, the cancellation of contract was arbitrary and the company is entitled to get
compensation.
83. This Indian case involved the termination of a mining machinery supply contract by a
government-owned company. The court examined whether the termination was
arbitrary and held that the termination must be based on just and valid reasons and not
be arbitrary.87 In this case, the government cancelled permits for the import of raw
sugar, affecting sugar industries. The Supreme Court ruled that the government's
decision was arbitrary and ordered that the permits be reinstated. The case reinforced
the principles of fairness and reasonableness in government actions affecting
contractual rights.88

86
CASE RECORD
87
The Indian Contract Act,1872, No, 9, 1872, INDIA CODE, 1872 (India).
88
Dwarikesh Sugar Industries Ltd. v. Union of India (2016) writ petition No. 44371
of 2009(India).

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84. Supreme Court Advocates-on-Record Association v. Union of India (1993)89: While

this case primarily deals with the interpretation of the constitutional doctrine of
separation of powers, it has broader implications for arbitrary government actions,
including the cancellation of contracts. The Supreme Court highlighted the importance
of government actions being reasonable, fair, and within the bounds of the law.
85. The Action taken by the government was not fair, unreasonable and arbitrary. Hence
the company is entitled for compensation.

[B.2] THE ARBITRARY CANCELLATION OF CONTRACT LED TO TARNISHED

REPUTATION OF THE CLAIMANT & ALSO LED TO HUGE MONETARY LOSSES.
86. As proven in above issues that the tablet ‘Novak’ was an invention and they have made
altogether new product from Peri Leaves. The RESPONDENT arbitrarily cancelled the
contract that led to huge loss of reputation and monetary losses to the CLAIMANT.90
87. The arbitrary cancellation of contract by state without prior notice parties to a contract
are legally expected to perform their part of performance breach on their part will lead
to compensation to the other party to a contract
88. The tablet ‘Novak’ was claimed to be much faster in its effect of increasing the stamina,
than the raw eating of the peri leaves91. The invention of tablet ‘Novak’ was an
invention and was beneficial for public at large before it was only used by indigenous
community but after an invention it would have reached to population at large and
production for the same in the large quantity would have been beneficial to the public.
The cancellation of contract by government led to huge losses to company.
89. The huge loss to company shall be compensated by government. As per § 73 92of Indian
Contract Act,1872 when a contract has been broken, the party who suffers by such
breach is entitled to receive, from the party who has broken the contract, compensation
for any loss or damage caused to him thereby, which naturally arose in the usual course
of things from such breach, or which the parties knew, when they made the contract, to
be likely to result from breach of it.”

89
Supreme Court Advocates-on-Record Association v. Union of India, 2015
SCC OnLine SC 1665(India).
90
CASE RECORD.
91
CASE RECORD.
92
The Indian Contract Act,1872, No, 9, 1872, INDIA CODE, 1872 (India).

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90. The Supreme Court of India discussed the principles of compensation under §7393 of
Indian Contract Act,1872. The court held that the damages must arise naturally from
the breach of contract and should be foreseeable. This case further clarified the scope
of damages and compensation in contract law.94
91. The loss suffered be CLAIMANT shall be compensated by the respondents. The remedies
given under § 73 of Indian Contract Act,1872 the two aspects must be considered
(i) Entitlement to Compensation: This section establishes that when a contract is
breached, the party who suffers due to the breach is entitled to receive compensation
from the party who has broken the contract. Hence, the CLAIMANT is entitled to
compensation for the arbitrary cancellation of contract by Respondents.
(ii) Scope of Compensation: The compensation awarded should cover the loss or damage
that naturally and directly arises from the breach of the contract. It should also cover
losses that the parties knew or could foresee at the time of entering into the contract.
In other words, the compensation should cover the reasonably foreseeable
consequences of the breach.
92. From the above 2 aspects company shall be entitled for compensation as there was a
breach of contract from the sides of respondents and the compensation of damages
would be according to the loss incurred by the CLAIMANT due to cancellation of contract
of factory set-up. The damages claimed is in directly connected to breach of contract as
the cancellation of contract would lead to huge monetary losses.
93. The Supreme Court of India95 discussed the principles governing the award of damages
under § 73 Indian Contract Act,1872. The court emphasized that damages should be
reasonably foreseeable and must have a direct connection with the breach of contract.
94. The CLAIMANT is entitled to get compensation under Indian Contract Act,1872 for the
breach of contract by government.

93
Id at § 73.
94
R.G. Anand v. Delux Films AIR 1978 SC 1613 (India).
95
Bengal Nagpur Cotton Mills v. Chatterjee AIR 1960 SC 367(India).

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MEMORANDUM for CLAIMANT [ PRAYER FOR RELIEF]

PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed before the Hon'ble High Court of Hima Pradesh that this Hon'ble Court may be
pleased to HOLD and DECLARE:

1. That, the invention of “Novak” medicine by the CLAIMANT satisfies the test of Patentability
under §3 of the Indian Patent Act, 1970 as it fulfils all the prerequisites of Novelty, inventive
step and Industrial application required for a subject matter to be an invention.

2. That, the revocation of patent by the controller was invalid and the Arbitrary cancellation of
contract by the Government of Hima Pradesh was invalid for which the company is liable to
get compensation.

Also, may pass any other order that the Hon'ble Court may deem fit and proper in light of
justice, equity and good conscience.

For this act of kindness, the council from the side of the CLAIMANT shall duty-bound forever
pray.

Place- Hima Pradesh ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/

(Counsel on behalf of the Claimant)

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