Bdr Pharmaceuticals International Pvt Ltd v. Kudos Pharmaceuticals Limited & Anr.

Patents don't die quietly. Even as the clock ticks down on a blockbuster drug's monopoly, the courtroom can still reach into a competitor's wallet and demand a slice of the profits be set aside. The clash between BDR Pharmaceuticals International and Kudos Pharmaceuticals Limited over the cancer drug Olaparib proves that an expiring patent is no shield against judicial caution—and that founders and IP teams must think about the endgame long before the patent expires.

At the heart of this dispute was Indian Patent IN 2287201, covering Olaparib, the compound famously sold under the brand name LYNPARZA—a breakthrough therapy in oncology. BDR Pharmaceuticals International Pvt., the patent holder, dragged Kudos Pharmaceuticals Limited and another party into court alleging infringement of this patent. The stakes were significant: Olaparib is a high-value cancer drug, and any generic competition could erode substantial revenue. BDR didn't just want the usual cease-and-desist relief—it pushed for a temporary injunction and, crucially, asked the court to compel the defendant to deposit a portion of its revenues earned from the allegedly infringing activity. The wrinkle? The patent in question was already nearing its expiration date, raising a fundamental question about whether interim relief was still meaningful.

BDR Pharmaceuticals argued that despite the patent's impending expiry, the infringement had already occurred during the patent's lifetime, and any earnings Kudos had made from selling the allegedly infringing product represented unjust enrichment. They pushed for a temporary injunction to halt further sales and demanded that Kudos deposit its revenues as security for any future damages or claims. Kudos, on the other hand, likely contended that with the patent on the verge of expiring, the rationale for interim relief—especially a sweeping revenue deposit—was weakened. The legal friction centered on a critical question: should the court treat an expiring patent differently from a patent with years of life left, particularly when the plaintiff is asking for monetary safeguards rather than just an injunction?

The court sided with caution over convenience. Rather than dismissing the revenue deposit request simply because the patent was nearing its end, the court exercised its discretion and issued interim directions. Kudos Pharmaceuticals was ordered to disclose its earnings from the allegedly infringing sales and to earmark 20% of the net sales value into a No Lien account. This meant that even though the patent's expiration was imminent, the court ensured that a financial cushion existed to safeguard BDR's potential claims for infringement. The court made clear that the imminence of patent expiry does not strip it of the power to direct deposits when there are legitimate infringement claims to protect. The outcome was an interim order—not a final judgment on infringement—but one that placed real financial discipline on the defendant during the twilight of the patent's life.

For founders, startup leaders, and IP professionals, the lesson is sharp: an expiring patent is not a get-out-of-jail-free card. If you launch a product that potentially infringes a patent—even one with months left on the clock—a court can still order you to set aside a meaningful percentage of your sales revenue. Conversely, if you hold a patent nearing expiration and believe a competitor is infringing, don't assume it's too late to seek interim relief; the courts retain the discretion to lock away a portion of the infringer's earnings to protect your claims. Build your IP strategy with the endgame in mind, and remember that the courtroom's power to safeguard rights doesn't vanish the moment the patent term starts winding down.