M C JAYASINGH Vs. MISHRA DHATU NIGAM LIMITED

JUDGEMENT

(1.) APPELLANT is the plaintiff in the suit for perpetual injunction to restrain the respondents/defendants from in any manner infringing Patent Nos. 196333,198872 and 198869 as regards the Prosthesis manufactured and marketed by the appellant. Pending the suit, the appellant sought for an order of interim injunction in O. A. Nos. 786 to 789 of 2007. The learned single Judge, considering the rival submissions made by the learned counsel for the parties and analysing the facts and circumstances of the case, rejected the applications filed by the appellant, not granting interim injunction. Aggrieved over the same, he has filed these appeals.

(2.) THE case of the appellant is that he is engaged in developing and improving the concept of Limb Salvage, using Custom Prosthesis, to meet the anatomical and functional demands of a patient after excision of bone tumors. Prosthesis is an artificial substitute or replacement of a part of the body such as eye, facial bone, knee, leg, arm etc. Custom Prosthesis is a procedure, by which the diseased part is surgically removed and the skeletal defect is corrected using a metallic implant, known as Endo-Prosthesis. As a result of the research done in this field, the appellant, along with Dr. Mayilvahanan Natarajan, invented a wide range of Prosthesis for limb salvage surgery for different parts of the anatomy, known as Custom Mega Prosthesis, which is made of titanium alloy or medical grade stainless steel. The appellant, with the guidance of Dr. Mayilvahanan, is marketing and selling the various Custom Mega Prosthesis through another proprietary concern by name Arc Bio-Mechanical Engineers ever since 1992, by manufacturing titanium alloy made products, purchasing titanium from the first respondent/defendant, who is the sole producer of titanium products in the country. Dr. Mayilvahanan Natarajan is the co-patentee of the prosthesis, developed and marketed by the appellant. Using the said monopoly, the first respondent refused to supply titanium alloy for manufacture of medical applications.

(3.) THE further case of the appellant is that he had been supplying 'cmp-KJP' to the fourth respondent, namely, Cancer Institute (W. I. A.), Regional Cancer Centre, Adayar, Chennai, on the clinical specifications of Prof. Mayilvahanan Natarajan. In spite of the fact that limb salvage surgery is continued in the Cancer Institute, all of a sudden, the fourth respondent stopped the placement of order virtually without any reason. The appellant came to know through a newspaper article on 13. 02. 2004 in the Hyderabad edition of 'the Hindu' that an operation had been done at the second respondent by which the cancer infected bone and knee joint of an eighteen year old boy was removed and replaced with the prosthesis developed by the first respondent's bio-medical division, by name "apollo Midhani Prosthesis". Since the products were not readily available in the open market, the appellant had no idea whatsoever about the offence committed by the respondents as regards his intellectual property rights. While perusing the credentials of a candidate, who approached the appellant for employment in 2006, the appellant found that the candidate was a student in Bio-Medical Engineering from one of the Chennai based Colleges and had carried out a project work titled "design of Custom made Hinge Knee Rotational Joint and its Study" during the year 2005-2006 under the supervision of one P. Amma Rao, Departmental Head of Bio-Medical Division of the first respondent. On going through the project papers of the said candidate, the appellant found that the project was on a Prosthesis, which was the absolute replica of the one invented by him, over which the appellant alone had subsisting patent and design registration, and, only thereafter, the appellant came to know of the infringement of his intellectual property rights over "cmp-KJP".