RAJNIKANT DEVIDAS SHROFF Vs. PHARMA CHEM

JUDGEMENT

(1.) THE plaintiffs have filed Civil Suit No.5/2003 in the Court of District Judge of Valsad praying for a perpetual order of injunction restraining the defendants from infringing the patent of plaintiff no.1 bearing No.172459 and/or from manufacturing and/or offering for sale the said product namely Phosphorus Pentachloride or applying the invention covered by the said patent no.172459 for manufacture of Phosphorus Pentachloride. The plaintiffs have also prayed for decree of Rs.1,00,00,000/= or in the alternative, the defendants be ordered and decreed to render a faithful account of the profits earned by the defendants by selling Phosphorus Pentachloride and the defendants be ordered and pay to the plaintiffs the said amount as may be found due on said account being taken.

(2.) THE plaintiffs have filed an Application, Exhibit 5 for interim relief in the said suit. The plaintiffs have further filed Application, Exhibit 6 for appointment of Court Commissioner. The learned Joint District Judge, Valsad passed order below, Application Exhibit 6 on 07.08.2004 appointing two persons as Court Commissioners to investigate the apparatus and process used by the defendants in their factory premises situated at GIDC Sarigaon, Tal. Umargaon, Dist. Valsad and to file a report before the Court to gather the evidence taken by them within the period of one month from the issue of the commission letter. On process being issued, the defendants have appeared through their advocates and filed affidavit -in -reply/written statement to the plaint as well as injunction application on 21.01.2004. The defendants thereafter filed counter claim under Section 104 of the Patents Act, 1970 read with Order 8, Rule 6A of the Code of Civil Procedure, 1908 for revocation of Patent No.172459. The learned Joint District Judge passed an order on 01.04.2005 below Application, Exhibit 50 for transfer of Civil Suit under the provisions of Section 104 of the Patents Act, 1970. Accordingly Civil Suit No.5/2003 alongwith all the opponents application and proceedings was transferred to this Court under Section 104 of the Patents Act, 1970 and on suit being transferred here, new no., i.e. Civil Suit No.1/2005 is given to the said Suit.

(3.) IN this Suit, the plaintiff no.1 is the Chairman and Managing Director of the plaintiff no.2, the Company. Plaintiff No.2 is a company incorporated under the provisions of Companies Act, 1956 and it is carrying on business as manufacturers and dealers inter -alia in various types of industrial chemicals. The goods manufactured by plaintiff no.2 are well received in the market both in India as also abroad. The plaintiff no.2 is engaged in research and development of various products and have acquired an enviable reputation in India as well as abroad. Plaintiff no.2 has a manufacturing unit at Plot No.11, GIDC, Vapi, District Valsad, Gujarat. The plaintiff no.2 has been manufacturing various types of chemical products at the said unit. One of products manufactured by plaintiff no.2 is known as Phosphorus Pentachloride, which is being manufactured by plaintiff no.2 in a process in respect of which a patent has been granted under the Patents Act, 1970 to plaintiff no.1. Plaintiff no.1 being the Chairman and Managing Director of plaintiff no.2 has granted a license to plaintiff no.2 to use the said patent. The said product has been manufactured by plaintiff no.2 by applying the said patent. Plaintiff no.2 is the only legal manufacturer of the said product in India. The defendants were alleged to have infringed the said patent by manufacturing the said product by the same process in respect of which, the patent has been granted to plaintiff no.1. Plaintiff no.1 invented the process and apparatus for the production of free flowing dry Phosphorus Pentachloride. Phosphorus Pentachloride is a white to pale yellow powder or fine granular fuming mass with a pungent odour. Its melting point is 166 Deg. C to 168 Deg. C under pressure and its sublimes. It has specific gravity of 3.6. It reacts violently with water. In the presence of moisture, it decomposes with heat. Prior to the invention, the following procedures were used for manufacturing Phosphorus Pentachloride :