BASF AG v Me2 Crop Protection Ltd & Anor

I have to deal with an application made by the claimant that the defendant should disclosed its source of the metazaclor which it is selling in this country under the name BOUNTY. Originally the first defendant, ME2 Crop Protection Limited (“Me2”), alleged that the product it was importing was made by or under or with the approval of the claimant, BASF AG (“BASF”), and that it was therefore legitimately available in this country under the exhaustion of rights doctrine which is part of European Community law. That was consistent with the terms of its marketing approval given by the Pesticide Safety Directorate (“PSD”). It now appears that it concedes that the product in issue in this action, although imported from abroad, does not come from BASF or any of its associates or licensees, and indeed it appears not to be within the scope of the approval granted by the PSD. In these circumstances the claimant says that it wishes to have details of the foreign supplier, because it may be that it will be in a position to take proceedings against it abroad.

That there is jurisdiction to make the order sought is not in dispute. Mr Edenborough for the defendant concedes as much. The question, it appears to me, is simply one of timing. As a result of an interlocutory injunction which I have already granted in favour of the claimant, there is no significant threat, on the evidence before me, that the foreign supplier will be supplying any more of the accused product to this market, at least in the immediate future.

Further, it should be borne in mind that the defendant, ME2, is alleging that the product itself is not an infringement of BASF's patent. It is not possible for me to resolve, or even to take a view as to the strength of, that non-infringement argument. For present purposes it is sufficient to record that Mr Edenborough does not assert that it is a clear and unquestionable winner, but nor does Dr Lawrence for BASF assert it is a clear and obvious loser. Dr Lawrence rightly concedes that if, at the end of the trial, the court were to come to the conclusion that ME2's product does not infringe the patent in suit, then the basis for seeking Norwich Pharmacal-type relief, such as that sought here, would fall away.

In view of the fact that BASF's market is protected against the alleged infringement by the interlocutory injunction, and the fact that it is possible that the defendant may win on the issue of non-infringement, it appears to me that it is not appropriate at this stage to order disclosure of the source of supply to the defendant.

I should, however, add that the reasons I have given for refusing this relief apply to the situation as it is at the moment. It is not meant to be a prohibition upon BASF making a further application if there is a material change in circumstances hereafter.