ARIF ABDUL KADER FAZLANI Vs. HITESH RAOJIBHAI PATEL

JUDGEMENT

(1.) The present Appeal from Order has been filed by the appellant -original plaintiff with the aforesaid Civil Application for the prayer that the impugned order dated 10.6.2011 passed by the learned Principal Judge, Anand, below Exh. 5 in Civil Suit No. 3 of 2011, may be quashed and set aside particularly with reference to the findings with regard to the patent of the appellant -plaintiff stating that the appellant's rights of patentee were not infringed; the process of making bales by the respondents is not the same as the appellant's patented process, and the appellant had no prima facie case, on the grounds set out in the Memo of this Appeal, interalia, that the learned Judge has erred in not taking into consideration the fact that by virtue of the grant of patent which is registered, the appellant is entitled to exclusive right to prevent third parties from using such process which has been a registered patent by the appellant. Further, it is contended that the fact that the patent is registered after proper scrutiny, prima facie suggests that it is registered after proper inquiry. It is also contended that the learned Judge has erred in not taking into consideration unessential features in the process and has considered minor variation in the process and thereby erred in coming to the conclusion. Further, it is contended that he has also erred in not appreciating that the appellant has a prima facie case and registration of patent itself would be sufficient for prima facie case which has not been considered or appreciated.

(2.) The respondents in Appeal from Order No. 230 of 2011 have filed Special Civil Application No. 7989 of 2011 under Art. 227 of the Constitution of India and Code of Civil Procedure of the prayer that appropriate writ, order or direction may be issued quashing and setting aside the reasons and findings contained in the order passed by the learned Principal District Judge, Anand in Civil Suit No. 3 of 2011 below Exh. 5 dated 10.6.2011 and also for the prayer regarding stay of operation and implementation of the order for the reasons and findings given in the said order below Exh. 5 in Civil Suit No. 3 of 2011 to the extent of holding that the patent of the plaintiff is prima facie valid for the grounds mentioned in the memo of petition, inter alia, that the learned Judge has completely ignored the provisions of the Act. It is also contended that the learned Judge has failed to appreciate the report of Mogambo Solutions as it clearly refers "does not constitute a legal opinion of any kind or nature as to any aspect of the present invention. Users who wish a legal opinion as to the patentability of any invention or the validity or enforceability of any patent are invited to obtain legal Counsel for this purpose." It is, therefore, contended that even the report of Mogambo Solutions cannot be said to be any legal or authentic opinion. Further, referring to the steps, contentions have been raised that some of the patents which have been registered in U.S. are compared and the contentions have been raised regarding the steps in the process that even as per such reports, steps are only of aligning the cloth and the walls of the cloth bag and sewing the same which is a known method. Therefore, it is contended that the learned Judge has not given any finding and ignored the ancient and traditional method of preparing tobacco bales. It is also contended that the provisions of Sec. 10 of the New Patent Act are not appreciated and therefore a separate petition has been filed before the Appeal from Order could be preferred.

(3.) As the parties and the issues involved in the Appeal from Order as well as the Special Civil Application are common, both the matters are heard and disposed of together by this common judgment.