BILCARE LIMITED Vs. THE SUPREME INDUSTRIES LTD

JUDGEMENT

(1.) THIS order shall decide the two appeals mentioned above which entail similar questions of facts and law. The controversy in these two appeals swirls around the question, 'is there any presumption in favor of the validity of the patent for grant of temporary injunction in favor of patentee.' The present appeals are directed against the orders of the learned Trial Court dated 7th February, 2007, wherein the Trial Court dismissed the applications under Order XXXIX Rules 1 and 2 CPC filed by the plaintiff/appellant, the applications filed by the defendants/ respondents under Order XXXIX Rule 4 CPC were permitted and ex parte injunction orders dated 6th October, 2006 were vacated. However, the defendants/respondents were directed to maintain accounts of the sales they make of the impugned product. The defendants/respondents were also directed to submit the statement of accounts after every three months in the court and to submit undertakings that they would pay the damages to the plaintiff/appellant in case the plaintiff subsequently succeeds in this case. It was also observed that the respondents had already filed opposition to the patent before the concerned authorities but the impugned order would not in any way affect the decision of the concerned patent authorities regarding the disposal of opposition. However, during the arguments advanced before this Court, it transpired that above said opposition to the patent was filed only by one of the two respondents i.e. M/s Associated Capsules Pvt. Ltd.

(2.) THE appellant's case is this. It has been manufacturing and marketing blister films made out of a variety of plastic materials including PVC for packing pharmaceutical products since 1997. The main drawback of PVC films is that these allow moisture to pass through these and thereforee cannot be used for medicines, which are even slightly sensitive to moisture, like vitamin tablets, analgesics like Paracetamol with Nimuselide, Antibiotics and Antibiotic combinations like Tetracycline, Amoxycilin etc. For all these drugs, there was a need to use more expensive multi -layered films, which are sometimes as high as three times the cost of PVC film or else use aluminum foils, which are even more expensive. The main idea was to protect the medicine from moisture. The appellant developed a process and a film was made using that process, by depositing a fine layer of aluminum on the surface of the PVC film. The said film had good moisture barrier properties and could protect sensitive medicines from moisture. It had unique property that it was translucent and thereforee the medicine tablets and capsules could be easily identified by patients and the trade. This metallized translucent PVC film for pharmaceutical use was the first of its kind in the world. The film was invented in the year 2004 and a patent application was filed under No. 262/MUM/2004, dated 3rd March, 2004, at the Indian Patent Office. The application was accepted and no opposition was received within the statutory time. The said application was granted registration at Seriall number 197823. The said patent was also granted to the appellant in the United States of America. The scope of patent of 197823 was set out primarily in claim No. 1 which runs as follows: (i) A multi -layer thermoformable, translucent pharmaceutical and food packaging film consisting of a core layer of 100 to 1000 microns thickness of food grade poly vinylchloride(PVC), devoid of politicizes having vinyl monomer less than 1 ppm and a global migration of additives less than 60 ppm; and a metallized layer of thickness 0.02 to 2 microns provided at least on one side of the said core layer and at least one to 250 microns thick food and pharmaceutical grade polymeric layer provided at least on one side of the core layer.

(3.) THE respondents contested the above said applications and moved applications under Order 39 Rule 4 CPC for vacation of ex -parte injunction orders granted vide order dated 6th October, 2006. The respondents enumerated the following defenses.