DONATION INTER VIVOS

In general, a DONATION is an act of liberality whereby a person disposes gratuitously of a

thing or right in favor of another, who accepts it.

Classification as to effectivity:

1. Donation inter vivos (Art. 729)

2. Donation mortis causa (Art. 728)
3. Donation propter nuptias

Donation Inter Vivos

- “a gift between the living”

- Basis: Article 729 of the Civil Code, which provides:
When the donor intends that the donation shall take effect during the lifetime of the
donor, though the property shall not be delivered till after the donor's death, this shall be
a donation inter vivos. The fruits of the property from the time of the acceptance of the
donation, shall pertain to the donee, unless the donor provides otherwise.

Requisites of a Valid Donation

1. The donor must have the CAPACITY to make the donation;

2. He must have DONATIVE INTENT (animus donandi);
3. There must be DELIVERY in certain cases; and
4. Donee must ACCEPT or consent to the donation during the lifetime of the donor and of
the donee in case of donation inter vivos
N.B. In donations mortis causa, acceptance is made after the donor’s death

Limitations on Donations Inter Vivos

1. Donor must reserve sufficient means for his support and for his relatives who are entitled
to be supported by him
2. Donation cannot comprehend future property except donations between future husband
and wife
3. No person may give by way of donation more than he may give by will

Perfection of the Donation

- Under Article 734 of the Civil Code, a donation is perfected from the moment the donor
knows of the acceptance by the donee.

Qualifications of the Donor and Donee

A. Donor
 1. Any person who has the capacity to contract and capacity to dispose of his
property (Art. 735)
2. Capacity shall be determined as of the time of the making/perfection of the
donation (Art. 737)

B. Donee
1. All those who are not especially disqualified by law

Formalities for the Donation of Movable and Immovable Properties

A. For movable property:

1. If accompanied with simultaneous delivery:
 For ₱5,000.00 or less – can be oral or written
 If more than ₱5,000.00 - written in a public or private instrument

2. If no simultaneous delivery:
 The donation must be written in a public or private instrument, regardless of
value; otherwise, under the Statute of Frauds, the donation shall be unenforceable

B. For immovable property:

1. In a public instrument specifying the property donated and the burden assumed by the
donee
2. Acceptancemay be made:
 in the same instrument; or
 in another public instrument, notified to the donor in authentic form, and noted in
both deeds

Void Donations

1. Those made by persons who are guilty of adultery or concubinage

2. Those made between persons found guilty of the same criminal offense, in consideration
thereof
3. Those made to a public officer or his wife, descendants and ascendants, by reason of his
office
4. By individuals, associations, or corporations not permitted by law to make donations
5. By a ward to the guardian before the approval of accounts
6. By spouses to each other during the marriage or to persons of whom the other spouse is a
presumptive heir
7. To relatives of such priest, etc. within the 4th degree, or to the church to which such
priest belongs
8. To an attesting witness to the execution of donation, if any, or to the spouse, parents,
children, or anyone claiming under them
9. To the priest who heard the confession of the donor during the latter’s last illness, or the
minister of the gospel who extended spiritual aid to him during the same period
 10. To a physician, surgeon, nurse, health officer or druggist who took care of the donor
during his/her last illness

Case:

G.R. No. 194199. March 22, 2017

PROVINCE OF CAMARINES SUR, represented by GOVERNOR LUIS RAYMUND F.
VILLAFUERTE,vs.BODEGA GLASSWARE, represented by its owner JOSEPH D. CABRAL

FACTS:

Petitioner is the registered owner of a parcel of land in Peñafrancia, Naga City. The said parcel
of land was donated to the Camarines Sur Teachers’ Association (CASTEA) through a Deed of
Donation Inter Vivos. The Deed imposed the condition that the land shall be used exclusively for
the construction of buildings which will house the offices of CASTEA and prohibited the sale,
mortgage, or encumbrance of the land. It included an automatic revocation clause.

CASTEA accepted the donation. However, it entered into a lease agreement with Bodega over
the said property for a period of 20 years. Bodega was requested to prove ownership or legal
basis of possessing the subject land. Thereafter, a Deed of Revocation was executed on the
ground that CASTEA violated the conditions in the Deed of Donation.

Petitioner filed a case for unlawful detainer against Bodega.

The MTC ruled in favor of the petitioner and ordered Bodega to vacate the property. The RTC
reversed the MTC ruling, which was thereafter affirmed by the CA.

In its comment, Bodega anchors its right of possession on its Contract of Lease with CASTEA.

ISSUE

Whether or not Bodega has the right to possess the property.

RULING

No. CASTEA never contested this revocation. Hence, the property donated reverted back to
Petitioner.

Petitioner merely allowed Bodega to possess the property by tolerance. Several demands to
vacate the land have already been made but Bodega refused to accede thereto.

Moreover, where a donation has an automatic revocation clause, the occurrence of the condition
agreed to by the parties as to cause the revocation, is sufficient for a party to consider the
donation revoked without need of any judicial action.
SAMPLE FORM:

DEED OF DONATION INTER VIVOS

(PARCEL OF LAND)

KNOW ALL MEN BY THESE PRESENTS:

That this DEED OF DONATION, made and entered into by and between:

EMILIA R. ARDIENTE, Filipino citizen, of legal age, widow and a resident

of Dumaguete City, Negros Oriental, Philippines, hereinafter referred to as the
DONOR,

― and ―

LILY J. CRUZ, Filipino citizen, of legal age, single, with residence at Dumaguete
City, Negros Oriental, Philippines hereinafter referred to as the DONEE:

WITNESSETH:

That the DONOR is the owner of a parcel of land situated at Dumaguete City,
Negros Oriental, Philippines and more particularly described and bounded as follows:

“A parcel of land (Lot _____, Case _____, Cad-_____) under OCT No. ___________ in
the name of ______________________, situated in the ______________________,
bounded on the SW., along line ______ by lot _____, along line ______ by lot ______, on
the NW., on point .... all of Cad-_____, ______________________, containing an area
of ______________________ Square Meters (_____ Sq.m.) more or less. [herein attached
as Annex “A”]”

That for and in consideration of the love and affection of the DONOR for the
DONEE for faithful services rendered by the donee to the donor, the said DONOR hereby
TRANSFERS, GIVES and CONVEYS unto the DONEE, the property above-described,
including all existing improvements found thereon, free from all liens and encumbrances
and charges of whatsoever nature;

That the DONOR hereby states, for the purpose of giving full effect and validity to
this donation, that she has reserved for herself sufficient property, in full ownership or in
usufruct, which is necessary and adequate for her support in consonance with her standing
in society;

That the DONOR further states, for the purpose as expressed in the next preceding
paragraph, that this donation is not made with the object of defrauding her creditors, having
reserved to herself sufficient property to answer for her debts contracted prior to this date;
That the DONEE hereby accepts this donation and hereby expresses gratitude for
the kindness and liberality of the DONOR;

IN WITNESS WHEREOF, the DONOR and the DONEE have hereunto set their
hands on this ________________________ at ______________________, Philippines.

______________________ ______________________
DONOR DONEE

SIGNED IN THE PRESENCE OF:

______________________________ ___________________________
Witness Witness
 ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES )

CITY OF ________________ ) S.S.

BEFORE ME A NOTARY PUBLIC, for and in the City of Dumaguete, on

____________________ personally appeared the following with their respective IDs:

Name ID No. Date & Place of Issue

personally known to me to be the same persons who executed the foregoing instrument
and being informed by me of the contents of the foregoing instrument, they acknowledged
before me that they executed the same on their own free will and deed.

WITNESS MY HAND AND SEAL on the date and place first above written.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2018.
 APPLICATION FOR SUBPOENA

Definition

- Under Section 1, Rule 21 of the Revised Rules of Court, a Subpoena is a process directed
to a person requiring him to attend and to testify at the hearing or the trial of an action, or
at any investigation conducted by competent authority, or for the taking of his deposition.
It may also require him to bring with him any books, documents, or other things under his
control in which case it is called a subpoena ducestecum.
- 2 kinds:
1. Subpoena ducestecum
2. Subpoena ad testificandum

By whom issued

a) the court before whom the witness is required to attend;

b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with investigations
conducted by said officer or body or
d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation
pending within the Philippines.

- When the application for a subpoena to a prisoner is made, the judge or officer shall
examine and study carefully such application to determine whether the same is made for
a valid purpose.

- No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is

confined in any penal institution for appearance or attendance in any court unless
authorized by the Supreme court.

Form and Contents

1. Name of the Court

2. Title of the action or investigation
3. Reasonable description of the books, documents, or things demanded

- Directed to the person whose attendance is required

- The relevance of the books, documents, or things must appear to the court

Subpoena for Depositions

- Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule

23, shall constitute sufficient authorization for the issuance of subpoenas for the persons
named in said notice by the clerk of the court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena ducestecum to any such person
without an order of the court.
Personal Appearance in Court

- A person present in court before a judicial officer may be required to testify as if he were
in attendance upon a subpoena issued by such court or officer.

Compelling Attendance

- In case of failure of a witness to attend, the court or judge issuing the subpoena, upon
proof of the service thereof and of the failure of the witness, may issue a warrant to the
sheriff of the province, or his deputy, to arrest the witness and bring him before the court
or officer where his attendance is required
- The cost of such warrant and seizure of such witness shall be paid by the witness if the
court issuing it shall determine that his failure to answer the subpoena was willful; and
without just excuse.

If the subpoena is disobeyed

- Failure by any person without adequate cause to obey a subpoena served upon him shall
be deemed a contempt of the court from which the subpoena is issued. If the subpoena
was not issued by a court, the disobedience thereto shall be punished in accordance with
the applicable law or Rule.
- Exceptions. – The provisions of sections 8 and 9 of this Rule shall not apply to a witness
who resides more than one hundred (100) kilometers from his residence to the place
where he is to testify by the ordinary course of travel, or to a detention prisoner if no
permission of the court in which his case is pending was obtained.

Case:

G.R. No. 132577. August 17, 1999

PEOPLE OF THE PHILIPPINES, vs. HUBERT JEFFREY P. WEBB

FACTS

Respondent Webb is one of the accused in a case for rape with homicide. In the course of the
proceedings in the trial court, respondent filed a Motion to Take Testimony by Oral Deposition
praying that he be allowed to take the testimonies of individuals, all of whom reside in the
United States.

The trial court denied the motion on the ground that it is not allowed under Section 4, Rule 24
and Sections 4 and 5 of Rule 119 of the Rules of Court.

On appeal with the CA, the CA reversed the RTC

ISSUE

Whether or not the respondent is entitled to secure the attendance of the said witnesses

RULING

No. It needs to be stressed that the only reason of respondent for seeking the deposition of the
foreign witnesses is "to foreclose any objection and/or rejection of, as the case may be, the
admissibility of Defense Exhibits "218" and "219"." This issue has, however, long been rendered
moot and academic by the admission of the aforementioned documentary exhibits by the trial
court in its order dated July 10, 1998.

The trial court was but exercising its judgment on what it perceived to be a superfluous exercise
on the belief that the introduction thereof will not reasonably add to the persuasiveness of the
evidence already on record.

Under the circumstances, we sustain the proposition that the trial judge commits no grave abuse
of discretion if she decide that the evidence on the matter sought to be proved in the United
States could not possibly add anything substantial to the defense evidence involved. There is no
showing or allegation that the American public officers and the bicycle store owner can identify
respondent Hubert Webb as the very person mentioned in the public and private documents.
Neither is it shown in this petition that they know, of their own personal knowledge, a person
whom they can identify as the respondent-accused who was actually present in the United States
and not in the Philippines on the specified dates.
SAMPLE FORM:

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MANILA CITY
BRANCH NO. ___

EMILIA R. ARDIENTE
Plaintiff, CIVIL CASE NO. ___
For: Unlawful Detainer
-versus-

JULIO J. CRUZ,
Defendant.
x---------------------x

REQUEST FOR ISSUANCE OF SUBPOENA AD TESTIFICANDUM

ATTY. ABCEDE F. GHI

Executive Clerk of Court
Regional Trial Court of Manila

GREETINGS:

As counsel for plaintiff, may I request that a subpoena ad testificandum be issued to

Ms. Lily Y. Cruz, with address at Sta. Mesa, Manila, to testify and bring with him the
following documents, which are not confidential nor privileged, and which are needed in
the hearing of the above-entitled case on 22 April, 2018 at 1:00 p.m. and at any subsequent
hearings, to wit:

1. Certified True Copy of the Contract of Lease; and

2. Demand Letters addressed to defendant.

The undersigned will pay the legal fees for such purpose.

Manila City, 19 April 2018

(SIGNATURE OF COUNSEL)
 Petition for Prohibition

Rule 65, Section 2. Petition for prohibition. — When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by:

1. a certified true copy of the judgment, order or resolution subject thereof;

2. copies of all pleadings and documents relevant and pertinent thereto,

3. and a sworn certification of non-forum shopping as provided in the third paragraph of section
3, Rule 46.
Dolot vs. Paje, etc., et al.

G.R. No. 199199, August 27,2013

Facts: Dolot, et al, filed the aforesaid petition with the RTC of Sorsogon alleging that mining
operations conducted by Antones Enterprises, Global Summit Mines Development
Corpororation puts the Municipality of Matnog in environmental dangers and despite this fact,
Sorsogon Governor Raul Lee and his predecessor Sally Lee issued to the operators a small-scale
mining permit.

Similarly, it was alleged that representatives of PMS and DENR did nothing to protect the
interest of the people in same community, thus, respondents violated R.A. No. 7076 or the
People’s Small-Scale Mining Act of 1991, R.A. No. 7942 or the Philippine Mining Act of 1995,
and the Local Government Code. Dolot, et al primarily prayed for the shutdown of said mining
operations through issuance of TEPO as well as the rehabilitation of the mining sites and the
return of the iron ore mined in the area.

The case was referred by the Executive Judge to the RTC of Sorsogon, Branch 53 being the
designated environmental court. However, the case was summarily dismissed for lack of
jurisdiction.

The RTC averred that SC Administrative Order (A.O.) No. 7 and Admin. Circular No. 23-2008
limit the power of such court to try and hear the case as its territorial jurisdiction was limited to
violations of environmental laws within the boundaries of Sorsogon City and the neighboring
municipalities of Donsol, Pilar, Castilla, Casiguran and Juban.

Issue: Whether the RTC-Branch 53 has jurisdiction to resolve Civil Case No. 2011-8338.

Held: Yes. The SC held that such reasoning is plainly erroneous and that RTC cannot solely rely
on SC A.O. No. 7 and Admin. Circular No. 23-2008 and confine itself within its four corners in
determining whether it had jurisdiction over the action filed by the petitioners.

As reiterated by the SC, jurisdiction is the power and authority of the court to hear, try and
decide a case, is conferred by law. It may either be over the nature of the action, over the subject
matter, over the person of the defendants or over the issues framed in the pleadings. BP Blg. 129
or the Judiciary Reorganization Act of 1980 also states that jurisdiction over special civil actions
for certiorari, prohibition and mandamus is vested in the RTC, hence, original jurisdiction shall
be exercised by the RTCs.

Both the SC AO and AC merely provide for the venue where an action may be filed. The Court
does not have the power to confer jurisdiction on any court or tribunal as the allocation of
jurisdiction is lodged solely in Congress and the same cannot be delegated to another office or
agency of the Government

The high court further emphasized that venue relates only to the place of trial or the geographical
location in which an action or proceeding should be brought and does not equate to the
jurisdiction of the court as it is aimed to accord convenience to the parties, as it relates to the
place of trial, and does not restrict their access to the courts.

Therefore, RTC’s motu proprio dismissal of the case on the ground of lack of jurisdiction is
incorrect. While it appears that the alleged actionable neglect or omission occurred in the
Municipality of Matnog and as such, the petition should have been filed in the RTC of Irosin, it
does not warrant the outright dismissal of the petition by the RTC as venue may be waived.

Moreover, the action filed by the petitioners is not criminal in nature where venue is an essential
element of jurisdiction. With these, the SC granted the petition and directed the Executive Judge
of the Regional Trial Court of Sorsogon to transfer the case to the RTC of Irosin, Branch 55, for
further proceedings with dispatch.
SAMPLE FORM:

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Branch ___, Quezon City

ANDRES BONIFACIO
Petitioner,

- versus - SCA No. ______

For Prohibition with prayer for
preliminary injunction
SANGGUNIANG BARANGAYNG SOCORROQUEZON CITY
Respondent,
x-------------------------------------------x

PETITION FOR PROHIBITION

PETITIONER, thru counsel respectfully avers that:

1. ANDRES BONIFACIO, is Filipino, of legal age,and a residentof Barangay Socorro,

Quezon City.
2. EMILIO AGUINALDO, is Filipino, of legal age, and is being sued in his official
capacity as Punong Barangay of Barangay Socorro, Quezon City.
(State the capacity and residence of the petitioner and the respondent.)
3. On 14th of February 2017 Dangerous Drugs Board issued Board Regulation No. 3 Series
of 2017, herein attached as Annex “A.” Under the regulation, a Barangay Anti-Drug
Abuse Council (BADAC) would be formed with aPunong Barangay as the chairperson
and the Sangguniang Barangay as members. The council is tasked to conduct aninventory
of identified drug personalities. The intelligence gathering of the list comes from
anonymous and unverified tips. Those listed are tagged as drug personalities without final
conviction. Some listed persons are reported in the news as having been summarily
executed by unknown assailants. On the 3rd of March 2017, the BADAC of Barangay
Socorro convened and announced though public notices that with the Philippine National
Police they were going to conduct door-to-door summons of the drug
dependents/pushers/couriers in the barangay to voluntarily surrender based on a partial
list.
4. Petitioner is a recovering drug dependent for over a year and has tested negative on a
drug test last 1st of March 2017, herein attached as Annex “B.” Petitioner reported to the
BADACof his status on the 6th of March 2017 to prevent his name his name from being
included on the watch list. Petitioner is exercising his constitutional right to be presumed
innocent until proven guilty from being violated by the respondent without or in excess of
his jurisdiction. Petitioner also fears for his life and his family. (State the facts and
circumstances under which the respondent [tribunal, board, or officer exercising
 judicial, quasi-judicial or ministerial functions] has acted without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.)
5. There is no other plain speedy, and adequate remedy in the ordinary course of law.The
DDB Regulation provides no mechanism/process/procedure to remove the name of one
listed on the watch list.
6. That a certified true copy of the DDB Regulation No. 3 Series of 2017 herein sought to
be reviewed is here attached, together with copies of all documents relevant and pertinent
thereto.

WHEREFORE, it is respectfully prayed that pending the proceedings in the action, a

preliminary injunction be granted ordering the respondent EMILIO AGUINALDO to desist and
refrain from further proceedings, and that after due notice and hearing, a Writ of Prohibition be
issued, commanding said respondent to desist absolutely and perpetually from further
proceedings (in the action or matter in question), with costs.

Incidental reliefs as law and justice may require are likewise prayed for.

Quezon City, Philippines, this 13thday of March 2017.

JOSE RIZAL, Esq.

Counsel for Petitioner
Rizal Law, Kalayaan Street,
Barangay Socorro, Quezon City
Roll No. 19061861
IBP No. 30121896
PTR No. 12301896

VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES)

CITY OF QUEZON ) S.S.

I, ANDRES BONIFACIO, Filipino, of legal age residing at Barangay Socorro, Quezon

City, after being sworn to in accordance with law, deposes and says that:
1. I am the Petitioner in the above-entitled case;
2. The facts stated in the above petition are true and correct to the best of my knowledge
and authentic records;
3. I have not commenced any action or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to the best of my knowledge, no such other
action or claim is pending in them; and
4. If I should learn that the same or similar action or claim has been filed or is pending after
its filing, I shall report that fact within five days from notice to the court or where the
petition has been filed.

Quezon City, Philippines, this 13thday of March 2017.

 Andres Bonifacio
ANDRES BONIFACIO
Affiant

SUBSCRIBED and sworn to before me, this 13thday of March 2017, in the City of
Quezon by ANDRES BONIFACIO with Passport No. 30111863 issued on 10th of May 2016at
Department of Foreign Affairs - Ali Mall.

Doc. No. ______; NOTARY PUBLIC

Page No. ______; Commission Serial No. ______
Book No. ______; Until December 31, 2017
Series of 2017 Roll of Attorney ______
IBP No. _____/Date/Place of Issue
PTR No. ____/Date/Place of Issue

Copy furnished though personal service:

ApolinarioMabini, Esq.
Counsel for the Respondent
Mabini Law, Kalayaan Street
Barangay Socorro, Quezon City
 Petition for Mandamus

Rule 65, Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment
be rendered commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the respondent.

The petition shall also contain a sworn certification of non-forum shopping as provided in the
third paragraph of section 3, Rule 46. (3a)

Period for filing of Petition for Prohibition and Mandamus

The petition shall be filed not later than sixty (60) days from notice of the judgment,
order or resolution.

In case a motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60) day period shall be counted from notice of the denial of said
motion.

Proper Court where Petition for Mandamus and Prohibition is to be filed

If the petition relates to an act or an omission of a municipal trial court or of a

corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court.

It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not
the same is in aid of the courts appellate jurisdiction.

If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise

provided by law or these rules, the petition shall be filed with and be cognizable only by the
Court of Appeals.

In election cases involving an act or an omission of a municipal or a regional trial court,

the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction
Corales vs Republic

G.R. No. 186613, August 27, 2013

Facts: Municipal Mayor of Nagcarlan, Laguna Rosendo Corales appointed Dr. Rodolfo Angeles
as Municipal Administrator. The appointment was unanimously approved by the Sangguniang
Bayan during his first term as Mayor but was disapproved during his 2nd-3rd term.

Provincial State Auditor Maximo Andal, after auditing local disbursements issued Audit
Observation Memorandum to Corales seeking his comment/reply regarding Angeles'
appointment and his emoluments. One of the recommendations in the AOM was for Corales,
being the appointing authority to be liable to pay for Angeles’ salaries.

Instead of replying, Corales filed with the RTC petition for prohibition and mandamus against
Andal and the Sanggunian to recall the AOM and desist from collecting from him. RTC decided
in favor of Corales. Republic, as represented by COA, filed petition for certiorari in CA ascribing
grave abuse of discretion amounting to lack or excess of jurisdiction. CA granted certiorari and
annulled the RTC order and dismissed the prohibition. Corales filed certiorari under Rule 45 to
nullify CA decision.

Issue: Whether the CA erred in ordering the dismissal of Corales’ action for prohibition.

Held: No, the CA's dismissal is correct. Corales insist that it is no longer necessary to
exhaust administrative remedies considering that there is no appeal or any other plain,
speedy and appropriate remedial measure to assail the imposition under the AOM aside from
an action for prohibition.

Corales was simply required to submit his comment/reply on the observations stated in the
AOM. The issuance of the AOM is just an initiatory step in the investigative audit being
conducted by Andal as Provincial State Auditor to determine the propriety of the disbursements
made by the Municipal Government of Laguna.

Prohibition, being a preventive remedy to seek a judgment ordering the defendant to desist from
continuing with the commission of an act perceived to be illegal, may only be resorted to when
there is “no appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law.”

His action for prohibition was premature. The audit investigative process was still in its initial
phase. There was yet no Notice of Disallowance issued. And, even granting that the AOM issued
to petitioner Corales is already equivalent to an order, decision or resolution of the Auditor or
that such AOM is already tantamount to a directive for petitioner Corales to reimburse the
salaries paid to petitioner Dr. Angeles, still, the action for prohibition is premature since there are
still many administrative remedies available to petitioners to contest the said AOM.
INTERPLEADER

What is interpleader?

Section 1, Rule 62 of the Rules of Court of the Philippines provides:

When interpleader proper.— Whenever conflicting claims upon the same subject matter
are or may be made against a person who claims no interest whatever in the subject
matter, or an interest which is whole or in part is not disputed by the claimants, he may
bring an action against the conflicting claimants to compel them to interplead and litigate
their several claims among themselves.

Interpleader is a remedy whereby a person who has a property in his possession or has an
obligation to render wholly or partially, without claiming any right in both, comes to court and
asks that the defendants who have made upon him conflicting claims upon the same property or
who consider themselves entitled to demand compliance with the obligation be required to
litigate among themselves in order to determine who is entitled to the property or payment of the
obligation. (Beltran v. PHHC, G.R. No. L-25138, August 28, 1969)

Requisites of an action for interpleader

1. There must be two or more claimants with adverse or conflicting interests to a property in
the custody or possession of the plaintiff;

2. The plaintiff has no claim upon the subject matter of the adverse claims, or if he has an
interest at all, such interest is not disputed by the claimants; and

3. The subject matter of the adverse claims must be one and the same.

What is the basis of this action?

Under the Civil Code of the Philippines, a cardinal principle to be observed for the validity of
payment or performance is that payment must be made “to the person in whose favor the
obligation was constituted.” (Art. 1240)

This means that as a rule, payment to the wrong person is not a valid payment and does not
extinguish the obligation.
Where to File?
Court Outside Metro Manila
Municipal Trial If the subject matter of the
Court (MTC) action is personal property,
valued at not more than
P20,000.00
Regional Trial Court If the subject matter of the
(RTC) action is real property with an
assessed value at not more
than P300,000.00
How to File?
FILING COURT ORDER
A complaint for interpleader is Upon filing of the
filed by the person against complaint, the court
whom the conflicting claims shall issue an order
are made. requiring the
conflicting claimants
to interplead with one
another.
If the interests of
justice so require, the
The focket, other lawful fees,
court may direct that
costs and other litigation
the subject matter be
expenses shall be paid by the
paid or delivered to
complainant; but these will
the court.
constitute a lien or charge
upon the subject matter of the
action, unless the court holds
otherwise.
SUMMONS
Summons shall be
served upon the
conflicting claimants,
together with a copy
of the complaint and
order.
In Metro Manila
If the subject matter of the
action is personal property,
valued at not more than
P50,000.00
If the subject matter of the
action is real property with
an assessed value at not
more than P400,000.00
MOTION TO DISMISS
Within the time for filing
an answer (15 days), each
claimant may file a
motion to dismiss on the
grounds specified in Rule
16 and on the ground of
impropriety of the action
for interpleader.
The period to file an
answer is interrupted or
tolled by the filing of the
motion to dismiss. If the
motion is denied, the
movant may file his
answer within the
remaining period to
answer, but which shall
not be less than 5 days in
any event from the notice
of denial of the motion.
 ANSWER
Each claimant shall file his
answer within 15 days from
service of the summons,
serving a copy thereof upon
each of the other conflicting
OTHER
claimants, who may file their
PLEADINGS
reply thereto. The parties may file
If claimant fails to plead counterclaims,
within the time herein fixed, crossclaims, third-
the court may, on motion, party complaints and
declare him in default and
responsive pleadings
render judgment barring him
thereto. PRE-TRIAL
from any claim in respect to
the subject matter. A pre-trial will be
conducted in
accordance with the
Rules of Court.

DETERMINATION
Court shall determine
conflicting claimants’
respective rights and
adjudicate their
several claims.
[SAMPLE FORM]

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MAKATI CITY, BRANCH ____

CON FUSED CIVIL CASE NO. _____

Plaintiff,
- versus -
For: Interpleader
CLAIMANT 1 AND CLAIMANT 2
Defendants
x-----------------------------------------------x

COMPLAINT IN INTERPLEADER

PLAINTIFF, by counsel, respectfully states that:

1. Plaintiff and defendants are all of legal age; plaintiff resides at ________________
while defendants reside at _______________ and _______________, respectively, where they
may be served with pertinent notices.

2. On 11January 2018, plaintiff found a Gold Rolex Oyster watch, without knowing who
its true owner is. The watch is now in plaintiff’s possession. On or about 5 March2018,
defendants made similar representations to plaintiff as to ownership of the watch.

3. Plaintiff, who claims no interest in the watch, cannot determine the conflicting claims
of defendants and thus seeks to compel defendants to interplead and litigate their several claims
between themselves.

WHEREFORE, it is respectfully prayed that this Honorable Court issue an order

directing defendants to interplead with one another to determine their respective rights and
claims and to allow plaintiff to recover his expenses for safekeeping and the costs of this suit, as
first lien upon the subject matter ofthis action.
 Quezon City, 22 April 2018.

IAN ABELLE LAYNO

Counsel for Plaintiff
2nd Floor, SEDCCO Building, Makati City

VERIFICATION / CERTIFICATION

I, ______, of legal age, under oath, depose and state:

1. I am the ______, with express authority to sign this Verification and

Certification. Attached as Annex “A” is a copy of the Secretary’s Certificate dated
20 November 2006.

2. I caused the preparation of the foregoing petition.

3. I have read the contents of the said petition and the allegations
therein are true and correct of my own personal knowledge and based on
authentic documents.

4. I have not commenced any other action or proceeding or filed claims

involving the same issues and subject matter before any tribunal or quasi-judicial
agency and to the best of my knowledge, no such action or claim is pending
therein; if I should thereafter learn that a same or similar action or claim has been
filed or is pending, I shall report that fact to this office within five (5) days
therefrom.

IN WITNESS WHEREOF, I have hereunto affixed my signature this

20thdayof April 2018 at Makati City.

__________
Affiant
 SUBSCRIBED AND SWORN to before me this 20th day of April 2018 in
Makati City, affiant exhibited to me his Driver’s License No. 011-X01-96-031653,
expiring on May 11, 2020.

Notary Public
Doc. No. ____;
Page No. ____;
Book No. ____;
Series of 2006.
DECLARATORY RELIEF

Who May File?

Section 1, Rule 63.—Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance or
any other governmental regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or validity arising,
and for a declaration of his rights or duties thereunder.

An action for the reformation of an instrument, to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought
under this Rule.

Where to File?

To determine which court has jurisdiction over the actions identified in the second paragraph of
Section 1, Rule 63 of the Rules of Court, said provision must be read together with those of the
Judiciary Reorganization Act of 1980, as amended.

Section 33 of the said Act explicitly requires the MTC to exercise exclusive original jurisdiction
over all civil actions which involve title to or possession of real property where the assessed
value does not exceed P20,000.00, or in civil actions in Metro Manila, where such assessed value
does not exceed P50,000.00, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses and costs.

When to File?

An action for declaratory relief presupposes that there has been no actual breach of the
instruments involved or of rights arising thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach thereof, it may be
entertained only before the breach or violation of the statute, deed, or contract to which it refers.

Requisites

(1) Subject matter of controversy is a deed, will, contract, or other written instrument, statute,
executive order, or regulation, or ordinance;

Court may refuse to adjudicate where decision would not terminate the uncertainty or
controversy which gave rise to the action OR where the declaration is not necessary and proper
at the time;

(2) Terms and validity thereof are doubtful and require judicial construction;
 (3) No breach of the document, otherwise ordinary civil action is the remedy;

Must be before breach is committed, as in the case where the petitioner paid under protest the
fees imposed by an ordinance. Declaratory relief still proper because the applicability of the
ordinance to future transactions still remains to be resolved, although the matter could be
threshed out in an ordinary suit for the recovery of the fees paid.

(4) There is an actual justiciable controversy between persons whose interests are adverse;
(5) The same is ripe for adjudication;
(6) Adequate relief is not available through other means or other forms of action or
proceeding.

[SAMPLE FORM]

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MAKATI CITY, BRANCH ____

OEP PHILIPPINES, INC. CIVIL CASE NO. _____

Petitioner,

- versus -
For: Declaratory Relief
(Article 39.3, Agreement on Trade-
Related Aspects of Intellectual
Property Rights, otherwise known as
“TRIPS”)
PFIZER, INC.
Defendant.
x-----------------------------------------------x

PETITION

Petitioner, OEP PHILIPPINES, INC., by counsel, respectfully states:

Parties

1. Petitioner OEP Philippines, Inc. (“OEP”), is a Philippine corporation

engaged in the marketing and distribution of pharmaceutical products. Its office
address is at 6th Floor SEDCCO Building, Rada corner Legaspi Streets, Legaspi
Village, Makati City. Petitioner is represented in this action by its counsel,
Bengzon Negre Untalan Intellectual Property Attorneys, with principal address
at 2nd Floor SEDCCO Building, Rada corner Legaspi Streets, Legaspi Village,
Makati City, where it may be served with summons and other processes.

2. Respondent Pfizer, Inc. (“Pfizer”), is a Philippine corporation

likewise engaged in the manufacture and distribution of pharmaceutical
products. Its principal address is at 23/F Ayala Life-FGU Center, 6811 Ayala
Avenue, Makati City.

Antecedents
 3. Petitioner OEP is a reputable manufacturer and distributor of
pharmaceutical products. On 8 December 2003, OEP requested the Intellectual
Property Office (“IPO”) to conduct a comprehensive patent search on
“Olmesartan Medoxomil.” The comprehensive patent search yielded negative
results. Accordingly, OEP commenced development of a pharmaceutical
composition containing “Olmesartan Medoxomil.”

4. On 5 February 2004, OEP submitted an application for ACB

clearance for “Olmesartan Medoxomil” with the Bureau of Food and Drugs
(“BFAD”). This submission consisted of documents retrieved from the public
domain (copies of these documents are compiled in the attached blue binders 1
and 2, which form as integral parts of this Petition). The documents demonstrate
the safety and efficacy of “Olmesartan Medoxomil.” On 14 December 2005,
following ACB clearance, OEP submitted its application for initial registration of
its product containing “Olmesartan Medoxomil.” This submission consisted
entirely of test data generated by OEP itself. On 23 May 2006 and 31 October
2006, BFAD issued the corresponding certificates of product registration (“CPR”)
for Olmezar 20mg and 40mg, respectively. Copies of the said CPRs are attached
as Annexes “A” and “A-1.”

5. As a gesture of good faith, and prior to its intended launch, in a

letter dated 11 August 2005 (Annex “B”), OEP’s General Manager, Mr. Sam
Gioskos, inquired from defendant Pfizer whether it has an existing Philippine
patent covering the compound “Olmesartan Medoxomil.” In its letter of 13
September 2005 (Annex “C”), Pfizer informed OEP that Philippine Patent
Application No. 1-2003-500400, which is directed to “Olmesartan Medoxomil +
Hydrochlorothiazide,” was filed on 19 November 2001 under the name of
Sankyo Company Limited (“Sankyo”). According to Pfizer, Sankyo licensed
Pfizer to use the compound.

6. In a letter to Pfizer dated 28 October 2005 (Annex “D”), OEP’s Mr.

Gioskos told Pfizer that its “principal or affiliate did not submit any patent
application that corresponds to or is equivalent to European Patent 0503785”
which covers the compound “Olmesartan Medoxomil.” OEP also stated that
Philippine Patent Application No. 1-2003-500400, which pertains to “Olmesartan
Medoxomil + Hydrochlorothiazide,” is not an impediment to the launch of
OEP’s composition containing only “Olmesartan Medoxomil.”

7. On 5 June 2006 (Annex “E”), OEP wrote Sankyo, the developer of

“Olmesartan Medoxomil” and Pfizer’s principal, to inquire if Sankyo has patents
or pending patent applications that cover “Olmesartan Medoxomil.” OEP did
not receive any reply, written or otherwise, from Sankyo. Hence, OEP took it to
mean that Sankyo has no patents or pending patent applications for “Olmesartan
Medoxomil.”

8. In view of the absence of any patent or pending patent application

covering “Olmesartan Medoxomil,” OEP decided to proceed with the launch of
its version of the same compound. OEP contracted Hizon Laboratories, Inc.
(“Hizon”) to manufacture its “Olmesartan Medoxomil” product. A copy of the
agreement between OEP and Hizon is attached as Annex “F.”

9. However, on 10 August 2006 (Annex “G”), Hizon informed OEP

that the Legal Department of Pfizer wrote Hizon by e-mail regarding
“Olmesartan Medoxomil.” Per Hizon’s letter, Pfizer claimed that it “currently
has market exclusivity for Olmesartan” pursuant to the Agreement on Trade-
Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) and the
Intellectual Property Code of the Philippines (Republic Act No. 8293 or “IP
Code”). Pfizer also claimed that “it has data exclusivity for at least five (5) years
from launch and that OEP used the same data to register Olmezar,” which Pfizer
claims is in violation of the TRIPS Agreement and the IP Code.

10. On 14 August 2006 (Annex “H”), OEP, through counsel, wrote

Pfizer explaining that: (a) Article 39.3 of the TRIPS Agreement refers only to
protection of undisclosed data that is confidential in nature; and (b) OEP did not
use undisclosed data; instead, it used information that was publicly available.
OEP further explained that “Article 39.3 of the TRIPS Agreement is not data
exclusivity but a form of data protection which is intended to prevent unfair
commercial use of data by third parties.” “Exclusivity” and “protection from acts
of unfair competition” are not the same.
 11. On 8 September 2006 (Annex “I”), Pfizer’s counsel, Siguion Reyna
Montecillo and Ongsiako, wrote OEP’s counsel on the matter. It stated as
follows:
We disagree with your argument that Article 39.3 of the
TRIPS Agreement is inapplicable to product registration data
lodged with the Bureau of Food and Drugs (BFAD). TRIPS 39.3
clearly requires member countries to protect undisclosed
registration data against unfair commercial use and disclosure.
The provision also clearly relates to the pharmaceutical product
registration process and its protection was obviously intended to
cover pharmaceutical data submitted in the course of such a
process.

Your interpretation of TRIPS 39.3 – that it does not relate to

data or market exclusivity – is a version promoted by interested
sectors of the pharmaceutical industry seeking to influence
contemporary interpretations of the provision, to their benefit.
The literature on the matter does not bear out this interpretation,
however. State parties respecting the TRIPS 39.3 protections
recognize that a period of data protection is needed, providing
innovator companies with incentive to make the necessary
investment in pharmaceutical test and trial data.

12. In the same letter, Pfizer stated that it “reserves its right to proceed
against any party, including OEP if necessary, to protect its proprietary data
against unauthorized or unfair use.” This statement is clearly a threat from Pfizer
that it will sue OEP in the immediate future.

13. OEP, through its counsel’s letter of 20 September 2006 to Pfizer,

reiterated that:

Article 39.3 of the TRIPS Agreement is not data exclusivity

but a form of data protection which is intended to prevent unfair
commercial use of data by third parties.

xxx xxx xxx

 Article 39.3 of the TRIPS Agreement clearly states that the
subject of protection must consist of “undisclosed test or other
data.” Data that is available in the public domain is not covered
by this provision.

14. Recently, OEP received information that Pfizer is spreading news

that it is suing Hizon for manufacturing olmesartan medoxomil. The news is
circulating like wildfire in the pharmaceutical industry. Hence, OEP is left with
no recourse but to seek for declaratory relief.

Discussion

15. The subject matter of this instant Petition is Article 39.3 of the TRIPS
Agreement, which states, to wit:

Members, when requiring, as a condition of approving the

marketing of pharmaceutical or of agricultural chemical products
shall utilize new chemical entities, the submission of undisclosed
tests or other data, the origination of which involves a
considerable effort, shall protect such data against unfair
commercial use. In addition, Members shall protect such data
against disclosure, except where necessary to protect the public, or
unless steps are taken to ensure that the data are protected against
unfair commercial use.

16. For a wider perspective on the meaning and scope of Article 39.3, it
should be read within the context of the entire Article 39 of the TRIPS
Agreement, which reads:

Protection of Undisclosed Information

 Article 39

1. In the course of ensuring effective protection against

unfair competition as provided in Article 10bis of the Paris
Convention (1967), Members shall protect undisclosed
information in accordance with paragraph 2 and data submitted
to governments or governmental agencies in accordance with
paragraph 3 (Article 39.1)

2. Natural and legal persons shall have the possibility of

preventing information lawfully within their control from being
disclosed to, acquired by, or used by others without their consent
in a manner contrary to honest commercial practices so long as
such information:

(a) is secret in the sense that it is not, as a body or in the

precise configuration and assembly of its components, generally
known among or readily accessible to persons within the circles
that normally deal with the kind of information in question;

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the

circumstances, by the person lawfully in control of the
information, to keep it secret.

3. Members, when requiring, as a condition of approving

the marketing of pharmaceutical or of agricultural chemical
products shall utilize new chemical entities, the submission of
undisclosed tests or other data, the origination of which involves a
considerable effort, shall protect such data against unfair
commercial use. In addition, Members shall protect such data
against disclosure, except where necessary to protect the public, or
unless steps are taken to ensure that the data are protected against
unfair commercial use.
 17. The TRIPS Agreement is an international treaty administered by the
World Trade Organization (WTO) which sets down minimum standards for
most forms of intellectual property (IP) regulation within all member countries of
the WTO. It was negotiated at the end of the Uruguay Round of the General
Agreement on Tariffs and Trade (GATT) treaty in 1994. When the Philippines
became a member of the WTO, it had automatically acceded to the TRIPS
Agreement. The obligations under TRIPS apply equally to all member states.

18. Article 39.3 of the TRIPS Agreement is not a self-executing

provision. Instead, the article merely sets broad parameters upon which WTO
member-states should impose a regime of protection for “undisclosed
information” submitted to the government for marketing approval. This is
emphasized in Article 1.1 of the TRIPS Agreement which provides, to wit:

Members shall give effect to the provisions of this

Agreement. Members may, but shall not be obliged to, implement
in their law more extensive protection than is required by this
Agreement, provided that such protection does not contravene the
provisions of this Agreement. Members shall be free to determine
the appropriate method of implementing the provisions of this
Agreement within their own legal system and practice.

There is therefore a need for a legislative enactment on Article 39.3 to give

it effect in the Philippines.

19. At present, Article 39.3 of the TRIPS Agreement does not have a
mirror or counterpart provision under any Philippine law or statute. In any
event, the Philippines, together with a number of countries, has already publicly
rejected the interpretation that Article 39.3 of the TRIPS Agreement requires
granting of “exclusive rights” or “data exclusivity” to the owner of the data
(“Protection of Data for the Registration of Pharmaceuticals: Implementing the
Standards of the TRIPS Agreement, Carlos Maria Correa, University, p.52 [footnote #
35]). Some countries, nevertheless, have gone beyond what is mandated by
Article 39 (particularly Article 39.3) of the TRIPS Agreement as they enacted
national laws providing for “data exclusivity” over a specified period of time
(http://www.expresspharmaonline.com/20021121/oped.shtml). These countries,
however, have granted such “data exclusivity” as a consequence of bilateral or
regional free trade negotiations, bilateral investment agreements and/or other
international agreements and treaties (Briefing Note on Access to Medicines, World
Health Organization, Western Pacific Region, pp. 2-3 on the sub-topic: “TRIPS Does
Not Require Data Exclusivity).

20. Inasmuch as Pfizer insists that it acquires rights from Article 39.3 of
the TRIPS Agreement, and OEP believes that it does not, there is a need for this
Honorable Court to declare that Pfizer cannot sue OEP or Hizon on the basis of
Article 39.3 of the TRIPS Agreement.

21. Assuming, without conceding, that Article 39.3 is self-executory,

OEP submits that it does not provide for “data exclusivity” but is more
concerned with assuring that “undisclosed data is protected from unfair
commercial use.”

22. As may be culled from the exchanges between petitioner OEP and
Pfizer, there is clear disagreement on the scope Article 39.3 of the TRIPS
Agreement. Pfizer considers Article 39.3 as catering to “data exclusivity” over a
certain period. On the other hand, OEP believes that Article 39.3 simply suggests
a form of data protection which is intended to prevent unfair commercial use of
data by third parties. While Pfizer maintains that it has “market exclusivity” for
“Olmesartan Medoxomil” pursuant to Article 39.3 of the TRIPS Agreement, OEP
thinks that the same provision does not give Pfizer exclusivity over any publicly
available data submitted to the BFAD. At most, Pfizer’s rights under Article 39.3
are limited to protection of undisclosed data, or data that is not publicly
available, from unfair commercial use. OEP did not use undisclosed or
confidential data; much so, it did not resort to any form of unfair competition.

23. In order to determine the rights of the parties under Article 39.3 of
the TRIPS Agreement, there is a pressing need to construe its scope and meaning.
Particularly, OEP submits that this Honorable Court should declare that Article
39.3 of the TRIPS Agreement does not grant “data exclusivity” or “market
exclusivity” over test data submitted to the BFAD for marketing approval.

24. The TRIPS Agreement, under Article 39.3, establishes a minimum

standard for the protection of undisclosed data submitted for marketing
approval. This does not mean, however, that such protection requires the grant
of exclusive rights to the originator of the data. The value of undisclosed
information is not premised on inventive step or novelty; but, it is premised on
the fact that undisclosed information has commercial value and on its
“confidentiality.” Unlike patents, protection of undisclosed information under
Article 39.3 does not amount to a conferment of property rights.

25. The Vienna Convention on the Law of the Treaties, to which the
Philippines is a party, provides guidance on how to properly interpret Article
39.3 of the TRIPS Agreement. It instructs that the ordinary meaning and context
of the terms used, and the object and purpose of the treaty must be carefully
considered. Also, it states that the history of the negotiation is also an important
complementary element for interpretation (Article 31 (2), Vienna Convention).

26. The wording, context and purpose of Article 39.3 does not support
an interpretation that the required protection refers to “exclusivity” protection.
First, there is no categorical mention of “data exclusivity” in the subject article.
Second, a cursory reading of Article 39.3’s provision reveals the following:

(a) It requires governments to provide protection to marketing approval

data only under certain conditions.

(b) Test data must be protected if national authorities require its

submission.

(c) It does not require that protection be given to public data submitted
for marketing approval. To qualify for protection under Aticle 39.3, the pertinent
information must be “undisclosed.” This means that information that is already
within the public domain does not fall within the scope of the article.

(d) Protection is required only for new chemical entities. Article 39.3
would not apply in cases where approval is sought for new indications, dosage
forms, combinations, new forms of administration, crystalline forms, isomers,
etc. of existing drugs, since there would be no novel chemical entity involved.

(e) Article 39.3 requires countries to protect against “unfair commercial

use” of marketing approval data. Instances of “unfair commercial use” are: (a) a
competitor obtains the results of testing data through fraud, breach of confidence
or other dishonest practices and uses them to submit an application for
marketing approval for its own benefit; (b) the government provides access to
undisclosed testing data in order to provide an advantage to a firm which did
not produce them or share their cost. Protection from “unfair commercial use” is
not “data exclusivity.” Data exclusivity creates a form of property right; it
presupposes unconditional protection of test data over a period of time. In data
exclusivity, data remains exclusive in favor of its originator regardless of the
nature and manner of use, or whether there is “unfair commercial use” or not.

27. Further, the negotiating history of Article 39.3 reveals that the
parties considered at length, but did not adopt, text which required exclusivity
for test data. European, Japanese and United States business communities
advocated for the establishment of a data exclusivity regime. This was also the
submission of the United States representative to the TRIPS Agreement
negotiations. Nonetheless, these concepts were rejected (See “Protection of Data
Submitted for the Registration of Pharmaceuticals: Implementing the Standards of the
TRIPS Agreement,” Carlos Maria Correa, University of Buenos Aires).

28. OEP maintains that it did not violate any of Pfizer’s rights under
Article 39.3 of the TRIPS Agreement. However, in view of Pfizer’s position that
OEP did so, OEP invites this Honorable Court to also rule that, under the given
factual circumstances, OEP did not violate any of Pfizer’s rights, if any, under
Article 39.3 of the TRIPS Agreement.

29. OEP generated its own test data for its olmesartan medoxomil
product. It also used data that is available in the public domain. There was
sufficient data on olmesartan medoxomil that is publicly available. For instance,
the website of the Center for Drug Evaluation Research and the U.S. Food and
Drug Administration contains a wealth of information on olmesartan medoxomil
(http://www.fda.gov/cder/foi/nda/2002/21-286_Benicar.htm). A comprehensive paper
entitled “Olmesartan Medoxomil, a Novel Potent Angiotensin II blocker” is
downloadable from the internet.

RELIEF

WHEREFORE, petitioner OEP Philippines, Inc. respectfully prays that this

Honorable Court, by way of declaratory relief, issue a Decision ruling that:

(a) Article 39.3 of the TRIPS Agreement is not a self-executing

provision upon which Pfizer could sue OEP and Hizon;

(b) Article 39.3 of the TRIPS Agreement does not mandate the
grant of “data exclusivity” or “market exclusivity” over test data
submitted to the BFAD for marketing approval; and

(c) OEP did not violate any of Pfizer’s rights under Article 39.3 of
the TRIPS Agreement.

Other relief, just or equitable under the premises, are likewise prayed for.

Makati City, 20 November 2006.

BENGZON NEGRE UNTALAN

Intellectual Property Attorneys
Counsel for Petitioner

2nd Floor, SEDCCO Building

Rada corner Legaspi Streets

Legaspi Village, Makati City

By:
 Ferdinand M. Negre

Roll of Attorneys No. 37923

PTR: 4182680E- 01/03/06- Makati City

IBP: LRN 04281 – 1/08/03- RSM

Jonathan Q. Perez

Roll of Attorneys No. 46088

PTR: 4182686E-01/03/06-Makati City

IBP: 665590-1/04/06 - Tarlac

VERIFICATION / CERTIFICATION

I, SAM GIOSKOS, of legal age, under oath, depose and state:

1. I am the General Manager of petitioner OEP Philippines, Inc.

(“OEP”), with express authority to sign this Verification and Certification.
Attached as Annex “A” is a copy of the Secretary’s Certificate dated 20
November 2006.

2. I caused the preparation of the foregoing petition.

3. I have read the contents of the said petition and the allegations
therein are true and correct of my own personal knowledge and based on
authentic documents.

4. OEP has not commenced any other action or proceeding or filed

claims involving the same issues and subject matter before any tribunal or quasi-
judicial agency and to the best of my knowledge, no such action or claim is
pending therein; if I should thereafter learn that a same or similar action or claim
has been filed or is pending, I shall report that fact to this office within five (5)
days therefrom.

IN WITNESS WHEREOF, I have hereunto affixed my signature this

20thdayof November 2006 at Makati City.

Sam Gioskos
Affiant

SUBSCRIBED AND SWORN to before me this 20th day of November 2006

in Makati City, affiant exhibited to me his Driver’s License No. 011-X01-96-
031653, expiring on May 11, 2008.

Notary Public
Doc. No. ____;
Page No. ____;
Book No. ____;
Series of 2006.