MARIAPPAN Vs. A R SAFIULLAH

JUDGEMENT

(1.) THE orders passed herein will govern the disposal of O.S.A. Nos.263 and 283 of 2006. For the sake of convenience, the array of parties as referred in C.S.No.448 of 2006, is adopted here also. THE facts which are necessary for the disposal of this Original Side Appeals are as follows:-

(2.) THE plaintiff pending disposal of the said suit, filed applications in O.A.Nos.494 and 495 of 2006 respectively, praying for an ad-interim injunction restraining the Respondents/Defendants from in any manner infringing his registered patent under patent No.198079 in respect of "food-grade laminated paper, method and apparatus for manufacturing the laminated paper", by manufacture and sale of products identical to the product and in the method and apparatus by which he manufactures the said product; And for ad-interim injunction restraining the Respondents/Defendants from in any manner passing off artificial banana leaves(food-grade laminated paper) manufactured and sold by them and for applicant's artificial banana leaves (food-grade laminated paper) by using identical or deceptively similar same colour scheme, getup and layout or in any other manner.

(3.) THE fourth respondent/4th defendant had filed application Nos.2278 and 2279 of 2006 in O.A.Nos.494 and 495 of 2006 in C.S.No.448 of 2006 for vacating the ex parte orders of ad-interim injunction granted in favour of the applicant/plaintiff. In the affidavit filed in support of the above said applications, the 4th respondent/4th defendant has stated that the claim of the applicant/plaintiff that he conceived idea of artificial laminated banana leaves for serving and storing food and it is his original, intellectual property is wholly unsustainable. It is further submitted by the 4th respondent/4th defendant that the lamination is a technology well known in India for several decades and several companies including M/s.Jailaxmi Engineering Corporation manufactured machines which are used for lamination of paper and other products and the 4th respondent/4th defendant also makes necessary dyes ready for printing and cutting paper to a particular shape. THE concept of food-grade laminated paper is well known and used all over the world and both the process of manufacture of food-grade laminated paper (method and apparatus) and the product itself are well known and used in India. It is also submitted by the 4th respondent/4th defendant that the patent obtained by the applicant/plaintiff is only the process patent and not a product patent and even at the time of pendency of the application for patent, he filed application before the concerned authority for patent pre-grant opposition and after the grant of patent also, he filed post-grant opposition and the same are pending adjudication. It is a specific case of the 4th respondent/4th defendant that the modifications made to printing machine by the applicant/plaintiff are not novel and do not constitute an invention within the meaning of Patents Act. THE manufacturing process involved is nothing but laminated paper which is green in colour with a design and cut in the shape of banana leaf cannot be termed as original or intellectual property of the applicant/plaintiff and the leaf of a banana plant is a product of nature and no person can have proprietary right over such shape or even claim that he designed a banana leaf. It is also the submission of the 4th respondent/4th defendant that mere grant of patent alone does not lead to a prima facie conclusion that the Patent is valid or that it is a novel or new and he is not copying the method and process adopted by the plaintiff for manufacture of laminated paper. On a point of law, it has been contended by the 4th respondent/4th defendant, that an application for ad-interim injunction restraining him from passing off is not maintainable in terms of the provisions of the Patents Act, 1970.