GAJENDRA AGARWAL Vs. ADDITIONAL DISTRICT JUDGE NO. 3

JUDGEMENT

(1.) THE petitioner -defendant has filed the present writ petition under Articles 226 & 227 of the Constitution of India, challenging the order dt. 12.11.2013 passed by the Additional District Judge No. 3, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 264 of 2012, whereby the Trial Court has dismissed the application filed by the petitioner seeking transfer of the suit to the High Court under Sec. 104 of the Patents Act, 1970 (hereinafter referred to as 'the said Act'). The respondent No. 2 -plaintiff has filed the suit against the present petitioner under Sections 108 and 109 of the said Act alleging inter -alia that the respondent No. 2 -plaintiff, and the Department of Science & Technology, Government of Rajasthan had jointly applied for the registration of their invention i.e. 'Handpump attachable defluoridation plant' in the year 2002 before the Patent Office, and the said invention was registered in the year 2006. It was further alleged that the petitioner -defendant was copying its product under the patent and thereby infringing the said patent. In the said suit, the petitioner -defendant has filed the counter -claim for revocation of the patent contending inter -alia that the product was not an invention, and was a sheer articulation of prior skill/process to obtain the product registered under the said Act. The petitioner -defendant also filed an application under Sec. 104 of the said Act. The said application has been dismissed by the Trial Court vide the impugned order, against which the present petition has been filed.

(2.) THE learned counsel Mr. Pratik Kasliwal for the petitioner drawing the attention of the Court to Section 104 of the said Act has submitted that whenever the counter claim for revocation of the patent is made by the defendant, the suit along with the counter claim has to be transferred to the High Court in view of the proviso to Section 104 of the said Act. According to him, the Trial Court had mis -interpretated the provisions contained in Section 104 -A of the said Act and had wrongly dismissed the application. The learned counsel Mr. Anuroop Singhi & Mr. Amitabh Jatav for the respondent has not much resisted this petition and requested the Court to pass appropriate orders.