FRANZ ZAVER HUEMER Vs. NEW YASH ENGINEERS

JUDGEMENT

(1.) The point arising in the case is of considerable importance in regard to patents registered in India by foreigners and not kept in use in our country and thereby seriously affecting our market and economy. The foreigner in this case is seeking temporary injunction against other users and the question is whether the non-use of the patented mechanical device by the foreigner in India can be a ground for refusing temporary injunction?

(2.) The appellant, Franz Xaver Huemer, is an Austrian citizen. He filed the Suit No. 468 of 1994 on 26.2.1994 seeking a permanent injunction restraining the respondebt from making, using, exercising, selling or distributing any items which infringe the 5 patents belonging to the plaintiff bearing Nos. 161520, 162589, 162369, 163591 and 163095 and for a mandatory injunction to hand-over to the plaintiff all goods, advertising material or items which infringe the above patents, and for accounts of the profits, The plaint is filed by the plaintiff's through his power ofattorney, Mr. Raj KumarLohia. Pending the suit the plaintiff filed IA No. 2233/94 for temporary injunction on the same lines. The Court initially granted temporary injunction on 1.3.1994 but vacated the same on 27.11.95 under the impugned order. The plaintiff has preferred this appeal against the said order.

(3.) The plaintiff, Franz Xaver Huemer, registered the 5 patents in India on 31.7.85, 7.6.85, 7.6.85, 5.3.84 and 17.1.84. The patented items are certain mechanical devices used in textile industry. The plaintiff contended that in February, 1994, he came to know from the Journal Plasmas News that the defendants-respondents were claiming to manufacature and sell "Four Shuttle High- Special Circular Loom" and "higher line speed megnet type C.W.". The defendants' equipment was displayed in the exhibition at Pragati Maidan 20th February to 4th March,1994 and plaintiff allegedly found for the first time, the loom and.binding mechanism of the defendants' machine infringing the plaintiffs patent.