K. MANIVANNAN Vs. M. MANI

JUDGEMENT

(1.) THIS is an application for revocation of patent No. 204322 granted in the name of Valasumani Lathe Works, Sivagiri, Erode District, Tamil Nadu, (hereinafter referred to as the respondent) registered under Section 64 of the Patents Act, 1970 (hereinafter referred to as the Act) filed by the applicant.

(2.) THE brief facts of the case are that the respondent had applied for a patent for an invention titled "IMPROVED THRESHING AND SEPARATING MACHINE", and the same was granted under number 204322 (921/CHE/2004) on 13 February, 2007. Based on this patent, the respondent claimed that he filed a patent infringement suit being OS No. 243/2007 against this applicant which is pending before the District Judge, Erode.

(3.) THE matter came up for hearing before the Appellate Board on 27 January, 2009. Shri A. Prabhakara Reddy, advocate appeared for the applicant and Shri. J.V. Raghavan, advocate appeared on behalf of the respondent. The counsel for the applicant stated that the applicant having been in the field for the past 30 years, having vast experience in the said field, had invented a machine for threshing paddy and other related crops and filed a patent application in the patent office as stated earlier. The applicant's machine uses cycling technology with the helical/helix plates which cycles paddy or other crops in conjunction with rotors creating continuous cycles pushing the material fed through the hopper, while threshing from one end to other end, thus threshing the hay and separating from the grains. The straw or hay or the waste materials are pushed out through upper rear outlet of the machine. The counsel for the applicant also stated that the inventive step of his machine is that the helical/helix plates are provided in the upper hemisphere cover which receives and threshes paddy or the other crops, wherein the cover is fitted with the rotor. The rotor has a filter having straight angle rods which functions as the filter and separates the straw from the grains and the raw material is advanced by the helix plates in the cover. The counsel for the applicant further stated that the respondent had fraudulently filed an application for patent on 14.9.2004 keeping the entire technology of the applicant but making little variation in respect of studs and the filter and finally managed to get a patent for his application. The counsel for the applicant also stated that the subject matter of the said patent was available to the public openly by way of the machine manufactured by the applicant for revocation, as the applicant had been manufacturing such threshing machine and marketing such identical machine even prior to the filing of the application for grant of patent by the respondent. Therefore, the counsel for the applicant argued that the subject matter of the patent was identical or similar to the invention claimed in the patent application No. 455/MAS/2000 of the applicant which application had only been deemed to have been abandoned and the applicant had not got the patent, but had been manufacturing and marketing such threshing machine available for public even prior to the date of filing of the application for patent to the respondent. The counsel for the applicant submitted that while comparing the abstract of both the applications for patent (the patent application of the applicant and the respondent) the inventive step is only in providing helical path for the crop during threshing operations which has been ensured by the helical thresher cover which is the subject matter of both the patent applications. Therefore, the counsel for the applicant submitted that the respondent's patent was completely anticipated by way of anticipation by prior claiming, anticipation by prior publication and prior public knowledge because the applicant had been manufacturing it since the year 2000. Thus, when the patent is anticipated by prior public knowledge and prior publication as cited above, the patent granted to the respondent is liable to be revoked under Section 64(e) of the Act. The counsel for the applicant also argued that the invention so far as claimed in the claims of the patent granted to the respondent is completely similar or identical to the subject matter claimed in the earlier application filed by the applicant under the patent No. 455/MAS/2000. The counsel for the applicant by submitting that the invention claimed in respondent's patent was fully anticipated by prior public knowledge also referred to many advertisements published in various Tamil dailies since the year 2000 and up to the date of filing of the application for patent by the respondent. Thus the counsel for the applicant submitted that the subject matter of the patent granted to the respondent was already known to the public and public had been using in India before the priority date of the claim of the patent granted to the respondent and so the impugned patent should be revoked under Section 64 of the Act.