RAJ PARKASH Vs. MANGAT RAM CHOWDHRY

JUDGEMENT

(1.) This first appeal is directed against the judgment of a learned single Judge of this Court, who declded the suit between the partics on the Original Side of the High Court. The appeal, preferred against the judgment of the learned single Judge delivered on December 15. 1972. was admitted on February 28, 1973. That appeal came up for hearing before a Bench of this Court (Coram : S. N. Andley. C. J. and Prakash Narain. J.). The Bench by its order of April 30, 1974 framed an additional issue and remanded the case back to the learned single Judge for a finding on the said issue and disposal of the suit thereafter. The second judg-ment in consequence of the remand order was delivered on January 27. 1975. The matter thereafter came up before us.

(2.) The plaintiff/appellant produces and markets a toy called a viewer. This viewer uses a 35 mm. medially cut positive film on which are printed one or more pictures viewed through a lens fitted in a viewer specially adapted for use of such medially cm strips of 35 mm. positive films so as to get a virtual image of the same size as the virtual image of a normal frame in a 35 mm. film. The plaintiff obtained a patent bearing No. 111926 for what he calls his invention. We shall presently deal with the patent as granted to the plaintiff in some detail. Suffice it to say at this stage that the toy above-mentioned is attractive enough for children and may be used by even grown-ups for viewing interesting and educative pictures and is said to have had a good sale. It is he plaintiff's case that the defendants have infringed the patent of the plaintiff inasmuch as they are manufacturing and selling in the open market film strip viewers utilising a medially cut 35 mm. cinematograph film in viewers in a manner which is identical to and a copy of the viewers being manufactured and marketed by the plaintiff. Defendant No. 1 is said to be the owner-proprietor of the firm defendant No. 2, and is alleged to be the main offender. Defendant No. 3 is stated to be agent of defendant No. 1 and is only alleged to be selling and marketing the infringing viewers.

(3.) Defendants 1 and 2 resisted the suit but defendant No. 3 did not put in appearance and was proceeded ex-parte. The contesting defendants denied that the plaintiff had developed any process which could be called an invention for exposing or manufacturing of film strips made out of standard 35 mm. cinematographic films. It was denied that the defendants were manufacturers of film strip viewers. On the other hand it was contended that they were only sellers of film strip viewers and got, to quote from the written statement, "their 1/2 films strips manufactured from different agencies for the last five years much before the alleged patent claim of the plaintiff". It was contended that the defendants were getting printed four pictures of equal size on a cine standard frame of 35 mm. film so that four pictures of equal size are obtained on each cine standard frame of 35 mm. film and thereafter cutting the printed film medially into two halves to get two film strips which were capable of being separately used in film strip viewers. The process of printing four pictured on the cine standard frame of 35 mm. film adopted by the defendants was not claimed to be an invention and it was said that that process was common knowledge among photographers. Similarly, the process of dividing and sub-dividing a cine standard frame of 35 mm. film or other different formates of photographic films for purposes of copying prints of pictures and for other purposes, it was said, had been known as an ordinary process in photographic art for 50 years. In short, not only the invention claimed by the plaintiff was disputed but also its worth or value. A counter-claim for revocation of the patent was put in by defendants I and 2. It was pleaded that the plaintiff was not the true and first inventor of the alleged invention; that the defendants had been selling 1/2 film strip viewers for five years much before the plaintiff claims that he invented some- thing or got his patent; that there was pri publication and knowledge of the alleged invention of the plaintiff; that the alleged invention was of no utility; that there were other producers of film strips claimed by the plaintiff as his patent; that the patent was obtained by fraud etc.