National Company Law Appellate Tribunal, New Delhi: In the present case, a company appeal was filed under Section 53-B of the Competition Act, 2002 (‘Competition Act’), challenging the impugned order passed by the Competition Commission of India (‘CCI’), wherein it was held that there was no violation of Section 3 and 4 of the Competition Act. The Bench comprising Yogesh Khanna, J. (Judicial Member) and Ajai Das Mehrotra (Technical Member) dismissed the appeal, stating that there was no merit in it, as the CCI lacked the power to examine the allegations made against Vifor International (AG). The Tribunal stated that in the present case, the subject matter was Ferric Carboxymaltose (‘FCM’), a drug which had been developed and patented by Vifor International. Hence, in such cases the Patents Act, 1970 (‘Patents Act’) will prevail over the Competition Act.
Background:
The appellant submitted he was the Chief Executive Officer of a hospital that provided free dialysis services to patients on behalf of the Government under a Public-Private Partnership scheme, as part of the Pradhan Mantri National Dialysis Programme. It was submitted that patients undergoing dialysis commonly developed Iron Deficiency Anaemia (‘IDA’). As per the National Family Health Survey-5 (2019—21), IDA was 67% among children and 59% among women. It was further stated that an injection known as Ferric Carboxymaltose (‘FCM’) was available for the treatment of IDA.
Further, the appellant submitted that due to the anti-competitive and abusive conduct of Vifor International, FCM injections were neither accessible nor affordable to patients and consumers at large. The appellant then filed information before the CCI, alleging that Vifor International had engaged in anti-competitive practices and abused its dominant position, in violation of Sections 3 and 4 of the Competition Act. However, by its impugned order, the CCI held that there was no violation of Section 3 and 4 of the Competition Act. Hence, the present appeal was filed under Section 53-B of the Competition Act.
Vifor International submitted that they were a Swiss pharmaceutical company and had developed a molecule known as FCM, which was the active pharmaceutical ingredient used in injectables for the treatment of IDA. Vifor International had been granted a patent on the said drug on 25-6-2008. However, the said patent has expired on 21-10-2023 and thereafter, FCM had passed into public domain and was available for free exploitation by interested parties and consumers pan-India.
Vifor International submitted that, as per the provisions of Section 3(5) of the Competition Act, nothing contained in Section 3 shall restrict the right of any person to restrain infringement of, or to impose reasonable conditions as maybe necessary for protecting, any of his rights which had been or may be conferred upon him under the Patents Act. Vifor International challenged the jurisdiction of the CCI and contended that since the molecule in question is governed by the Patents Act, the CCI has no jurisdiction to consider the issue raised by the appellant.
Analysis, Law, and Decision:
The Tribunal noted that the CCI had examined the appellant’s complaint on merits and had held that, prima facie, no case was made out, thereby closing the matter by the impugned order. The Tribunal observed that it was necessary to examine whether the CCI had the power to consider the case, where the subject matter, being the drug FCM, had been protected by the Patents Act. It was further noted that Section 3(5) of the Competition Act laid down that the Competition Act would not restrict the right of any person in protecting his rights under the Patents Act.
The Tribunal noted that the Division Bench of the Delhi High Court in Telefonaktiebolaget LM Ericsson (PUBL) v. CCI, 2023 SCC OnLine Del 4078, had held that the Patents Act would prevail over the Competition Act. The CCI had challenged the judgment of the Delhi High Court before the Supreme Court of India in CCI v. Monsanto Holdings (P) Ltd., SLP No. 25026 of 2023 dated 2-9-2025, which was dismissed.
The Tribunal observed that in view of the decisions of the Delhi High Court and the Supreme Court, the CCI lacked the power to examine the allegations made against Vifor International. The Tribunal noted that Vifor International held the patent over the drug, at the relevant time. Thus, in the present case, the Patents Act prevails over the Competition Act, as the subject matter of contention was FCM, which was developed and patented by Respondent 2.
Further, the Tribunal observed that Section 3(5) of the Competition Act provided protection to a person holding patent to restrain any infringement of, or to impose reasonable conditions as may be necessary for protecting, its rights. The Tribunal held that there was no merit in the appeal and, accordingly, the appeal was dismissed.
[Swapan Dey v. CCI, Company Appeal (AT) No. 5 of 2023, decided on 30-10-2025]
Advocates who appeared in this case :
For Appellant: Rohit Arora, Advocate
For Respondents: Ms. Deeksha Manchana, Adv. Aileen Aditi Sundardas for Respondent 2
N. Raja Singh, Advocate for CCI, Ms. Sunaina Dutta, Joint Director for CCI, Dinesh Chand, Dy. Director for CCI.
Pravin Anand, Advocate. Vaibhav Gaggar, Senior Advocate with Vaishali K. Mittal, Siddhant Chamola, Ms. Gitanjali Sharma, Ms. Ambika Singh, Abhishek Nair, Advocates for Respondent 2.