Pfizer Incorporation v. Polyking Pharmaceutical Limited and Anor.
Federal High Court
Judgement delivered on: Wednesday, August 5, 1992
Citation: 35 NIPJD [FHC. 1992] 178/1992
Suit No.: FHC/L/CS/178/1992
Jurisdiction: Nigeria
Judgement delivered by: Olomojobi J.
CITED IN
Suit No. FHC/UY/CS/47/2003 – Rev. (Dr.) C.J.A. Uwemedimo & Anor. v. Mobil Producing Nig. Unlimited
Excerpt from citation:
“It was held in Pfizer Incorporation v. Polyking Pharmaceutical Limited and Anor. – (1998) 1 F.H.C.L.R. 1 at 2, that “a patentee’s right of action to sue on his patent accrued from the date he applied for the grant, but that right cannot entertain until after the grant…”
I. Background and Quick Summary
- Pfizer Inc. owned Patent No. RP 9708 for Piroxicam, a chemical compound used in medicine.
- Polyking Pharmaceutical allegedly imported and sold Rossiden Capsules, which also contained Piroxicam.
- Pfizer claimed this was an infringement of their patent.
- Polyking argued that their product came from a different manufacturing process.
- Pfizer’s expert testified that regardless of the process, if the compound is the same, its potency and nature do not change. Tests showed that Rossiden Capsules contained the same compound as Pfizer’s patented drug.
- Evidence also showed that Polyking’s product was available in Nigeria before Pfizer’s patent expired.
- Justice Olomojobi held that the compound in Rossiden was indeed Piroxicam as in Pfizer’s patent.
- The court found Polyking liable for patent infringement.
- Pfizer was awarded ₦23,902,328.74 in damages.
II. Facts
The Plaintiff — Pfizer Inc., brought an action against the Defendant — Polyking Pharmaceutical, for the infringement of their Patent. The Plaintiff averred that they were the owners of Patent No. RP 9708 in respect of a chemical compound “Piroxicam”. According to the Plaintiff, the Defendant infringed their patent by importing for sale “Rossiden Capsules”, which contained the same compounds Piroxicam as that of Plaintiff.
In defense, the Defendant asserted that their patent involved a different process. The Plaintiff called an expert witness who disagreed with the view of the Defendant and asserted that regardless of the possibility of producing any chemical product by different processes, so long as the products of different processes were the same compound, they cannot differ in potency. In the expert’s view, the Rossiden Capsule marked by the Defendant contained the same organic compound as the Plaintiff’s patent and evidence adduced before the court also revealed that large quantities of Rossiden Capsules, which contain the compound Piroxicam, were available in the Nigerian market even when their patent had not expired.
III. Judgement
Finding for the Plaintiff, Olomojobi, J., held interalia:
“On the basis of the evidence adduced by the Plaintiff witness who is an expert in the field of science pertaining to the chemicals in the drugs in issue, I have no alternative but to hold that the compound in the Defendant’s drug, Rossiden is the same Piroxicam as the one in the Plaintiff’s registration no: RP 9708 and I so hold. As such, the Defendants have infringed the Plaintiff’s Patent No RP 9708…”
The sum of ₦23,902,328.74 (Twenty-three million, nine hundred and two thousand three hundred and twenty eight Naira, 74kobo was awarded as damages in favour of the Plaintiff against the Defendant.
