GAUR HARI GUCHHAIT Vs. SHOGUN ORGANICS LTD

JUDGEMENT

(1.) This appeal has been preferred by the original defendants in a Civil Suit being CS(COMM) No.201/2017. The civil suit was filed by the respondent in these proceedings alleging breach of process patent by the original defendants. The suit was decreed vide judgment and decree dated 14th August, 2019 (Annexure ­ A to the memo of this first appeal).

(2.) Factual Matrix: For the product d-trans Allethrin, an application was preferred by the original plaintiff in the year 1995 under Section 9 of the Insecticides Act, 1968 (hereinafter referred to as "the 1968, Act"). On 17th March, 1997, the original plaintiff was granted registration under Section 9(3) of the 1968, Act and the product was registered. Thereafter the appellant No.4 (original defendant No.4) applied for registration for d-trans Allethrin on 20th February, 2006. The original defendant No.4 was granted registration under Section 9(4) of the Act, 1968 on 13th February, 2007. The original plaintiff preferred an application for registration of the patent for the "Process of manufacturing of d-trans Allethrin". This application was preferred on 10th May, 2007. After following the procedure under the Patents Act, 1970 (hereinafter referred to as "the 1970, Act") by obtaining the first examination report and thereafter rejection of the pre-grant opposition filed by defendant No.4 under Section 25(1) of the 1970, Act the Patent was granted to the original plaintiff. Pre-grant opposition was dismissed vide order dated 30th June, 2009 by the Patent Office. Patent was granted to the original plaintiff on 13th November, 2009. Thereafter under Section 25(2) of the 1970, Act "post grant oppositions" were filed by original defendant Nos.4 and 5. These post grant oppositions were allowed vide order dated 26th June, 2013 by the Patent Office. Thus, the process patent granted to the plaintiff was revoked vide order dated 26th June, 2013. Being aggrieved and dissatisfied by the order dated 26th June, 2013, the original plaintiff preferred an appeal before Intellectual Property Appellate Board (IPAB). This appeal was allowed vide order dated 18th August, 2014. Thus, the process patent was revived/granted again by quashing and setting aside the order dated 26 th June, 2013 and the matter was remanded back to the learned Deputy Controller of Patents and Design. After remand, the Patent Office reheard the "post grant oppositions" filed by original defendant Nos.4 and 5. After giving opportunity of being heard to the concerned parties, the Patent Office rejected the "post grant oppositions" vide its order dated 16th February, 2016, which had been initiated by defendant Nos.4 and 5 under Section 25(2) of the 1970, Act. Thus, the process patent was continued to be in favour of the original plaintiff. Thereafter, an appeal has been preferred by the defendant Nos.4 and 5 before the IPAB and the same is presently pending. The original plaintiff started manufacturing "d-trans Allethrin" with their patented process from 2010 onwards. It is alleged by the original plaintiff that the original defendants have also started manufacturing d-trans Allethrin with the same process, which is patented by the original plaintiff from October, 2014. Hence, a suit was instituted by the original plaintiff being CS(OS) No.3882/2014 which was converted into CS(COMM) No.201/2017, for getting permanent injunction restraining the defendants from infringement of its patent ­ IN ­ 236630 (IN ,,630) pertaining to the "process for manufacturing d-trans Allethrin" which is used as an active ingredient in mosquito repellents and other mosquito control products. The suit was decreed vide judgment and decree dated 14th August, 2019 and hence the original defendants have preferred the present RFA(OS)(COMM) No.41/2019.

(3.) Arguments canvassed by appellants (original defendants):