Swapan Dey Vs Competition Commission of India (NCLAT Delhi)
The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, decided an appeal filed by Swapan Dey under Section 53B of the Competition Act, 2002 challenging the Competition Commission of India’s (CCI) order dated 25.10.2022 passed under Section 26(2) in Case No. 5 of 2022.
Background
The Appellant, CEO of a hospital providing free dialysis services under the Pradhan Mantri National Dialysis Programme (PMNDP), alleged that Vifor International AG (Respondent No. 2), a Swiss pharmaceutical company, engaged in anti-competitive and abusive conduct by restricting the accessibility and affordability of Ferric Carboxymaltose (FCM) injections used to treat iron deficiency anaemia (IDA). The information, filed with CCI on 12.01.2022, alleged violations of Sections 3 and 4 of the Competition Act.
CCI’s Findings
Upon preliminary examination, the CCI found no prima facie contravention of the Competition Act and closed the case under Section 26(2). It observed that Vifor had entered into licensing agreements with Indian pharmaceutical companies Lupin Ltd. and Emcure Pharmaceuticals Ltd. for manufacture and distribution of FCM injectables. These agreements were not one-sided or restrictive and appeared reasonable in protecting patent rights.
CCI noted that Vifor had not imposed price restrictions or anti-competitive conditions and that its licensing agreements were short-term (three years) with provision for renewal. Since the patent on FCM was set to expire in 2023, the Commission held that post-expiry, the product would be open for generic production.
