STANDIPACK PRIVATE LIMITED Vs. OSWAL TRADING COMPANY LIMITED

JUDGEMENT

(1.) By this common order I propose to dispose of the applications registered as I.A. 11829/1998,774/1999 and 775/1999 in Suit No. 2391 /199.S; I.A. 9131/1996&1530/1997inSuitNo.2428/1996;I.A.1207/1997,2588/1997&3368/1997 in Suit No. 289/1997; I.A. 7489/1995 in Suit No. 1669/1994, I.A. 7749/1996 in Suit No. 1970/1995, I.A. 9132/1996 & 4746/1998 in Suit No. 2427/1996 & I.A. 7374/1995 in C.O. No. 25/1995. For convenience sake, the plaintiff in Suit No. 2391 /1998, M/s. Standipack Private Limited is being described as the plaintiff throughout in the present order and the other parties are described as defendants. Injunction applications have been filed by the plaintiff seeking for a temporary injunction restraining the defendant from manufacturing or using the patented pouch of the plaintiff. The case sought to be made out by the plaintiff in the injunction applications is that the patent in respect of pouch for storage and dispensing of a liquid such as lubricating oil was granted to the plaihtiff by the Controller of Patents. Corresponding patents have also been granted to the plaintiff in various other developed countries including USA, Europe and Australia. It is stated that subsequent thereto it has come to the notice of the plaintiff that the defendants have started selling pouches of the same construction as the patented pouches of the plaintiff and thereby violating the patent inasmuch as even sale/marketing of the said pouches would constitute violation of the patent. Accordingly, the plaintiff filed the suit for infringement, injunction and rendition of accounts and also for temporary injunction alleging violation of the patent by the defendants and therefore,granting interlocutory injunction in favour of the plaintiff and against the defendants restraining the said defendants from infringing the patent of the plaintiff and restraining them from manufacturing, selling pouches as those patented by the plaintiff.

(2.) Various defendants appeared in the suits by filing written statement and reply to the injunction application contending inter alia that the patent was granted to the plaintiff illegally and in violation of the provisions of the Patents Act and the rules framed therein and in few of which applications have been filed by various parties seeking for revocation of the patent granted. It is also stated that the goods in question were pre-published and therefore, the same was not entitled to be granted patent. It is also stated that there was suppression of material facts and variations in the stand of the plaintiff in the plaint and the stand taken at the time of arguments and therefore, the plaintiff is not entitled to any injunction as sought for. It was also stated that post-dating of the application of the plaintiff is also in violation of the provisions of the Act and that there is vital and marked difference in the pouches of the plaintiff and that of the various other parties namely-the defendants and therefore, no injunction should be granted in favour of the plaintiff. Indian Oil Corporation and Castrol India have filed petitions praying for revocation of patent, which are registered as C.0.25/1995 and C.0.11/1998 respectively.

(3.) Mr. Lekhi appearing for the plaintiff in support of the case of the plaintiff placed reliance on the various relevant provisions of the Patents Act particularly the definition of 'invention', 'patented article' and patented process as appearing in the provisions of Sub-sections 2(j) & 2(0) of the Patents Act, 1970 (hereinafter called the Act). Reliance was also sought to be placed on the provisions of Sections 9, II and 17of the Act. Reliance was also placed on the provisions of Section 25 and Section 48 of the Act. It was submitted by him that the patent which was granted in favour of the plaintiff and sealed is in fact in respect of the construction of co-extruded layers of the pouch and not in respect of a stand-up or pillow or any other kind of pouch. In support of his contention, Mr. Lekhi relied upon the report of the Committee constituted by the Ministry of Petroleum, a copy of which is placed on record. He submitted that the plaintiff being a patentee has the exclusive right to manufacture and market the said pouch under the provisions of the Act and therefore, the plaintiff is entitled to injunction following the ratio of the decision in American Cynamid Company v. Ethicon Ltd., reported in 1975 RPC 513. He further submitted that although revocation application has been submitted by some of the parties as against grant of the aforesaid patent, the same could be considered only at an appropriate subsequent stage and after evidence is led. He urged that validity or otherwise of the patent cannot be examined at this stage inasmuch as the same rests on matters of evidence to be led by the parties at the time of trial.