BHATHEY SUNDARA RAJAN Vs. AAKUPPUSAMI IYER

JUDGEMENT

(1.) These are appeals from the judgment of the District Court of Madura in several connected cases in which the plaintiffs sued for an infringement of a patent taken but by the 1st plaintiff in the year 1902 for the " Amp hill Patent Loom," The District Judge has found that the infringement has been proved and has given judgment for the plaintiffs.

(2.) Under the Patents Act of 1888 ("The Invention and Designs Act V of 1888 ") a defendant in an action for infringement is not allowed to set up by way of defence all the grounds on which the grant of the Patent Could be opposed, grounds which are to be found in Section 20 of the Act. One of those grounds is that invention was not a new invention. Under Section 29 (4) a defendant is not allowed to set Up the defence that the invention was not new, "unless the defendant or some person through whom he claims, has, before the date of the delivery of the application for leave to file the specification, publicly or actually used in some parts of British India or of the United Kingdom the invention with respect to which the exclusive privilege is alleged to have been infringed.

(3.) Now, it has been sought, in the argument before us, to escape from the operation of this section on two grounds; it has been contended for the Appellants that the defendant is not precluded from pleading that the alleged invention was not. the proper subject-matter of a patent, or that there was no subject, matter for the patent It is quite true that in English patent cases it has been the custom to plead, not only that the alleged invention was not new, but also, that it was not the proper subject matter for a patent; and accordingly, in many text books this matter is treated as distinct from the question whether the invention is new, whereas other text-book writers analysing the matter have pointed out that there is no real distinction. This objection was taken before me sitting on the original side last year (in O.S. No. 178 of 19.11) and I disallowed it. It is quite clear from a perusal of the (Patents Act of 1888 and the same conclusion follows from a perusal of the present Patents Act, (the Indian Patents and Designs Act II of 1911) that the framers of these Acts did not intend that there should be any separate defence to the grant of a patent on the ground of want of subject- matter as distinguished from want of novelty.