LALLUBHAI CHAKUBHAI JARIWALA Vs. CHIMANLAL CHUNILAL AND CO

JUDGEMENT

(1.) This is a patent action. Plaintiff is the holder of a Patent No. 18164 dated July 4, 1931, for an improved process of treating dried fruits, the process being particularly applicable to the treatment of dried shell almonds and betel-nuts. Defendants are betel-nut merchants, and the plaintiff's case is that since about April-May, 1933, defendants have been using his process, or substantially the same process, for the treatment of betel-nuts, and have been selling betel- nuts in the market treated by that process. He filed the suit on April 3, 1934, alleging that the defendants are infringing his patent rights, and prays for an injunction against the defendants and for an account of the profits made by them, or, in the alternative, for damages in respect of the infringement. Defendants deny the validity of the patent on various grounds, and they also deny the infringement. Several issues have been raised. Plaintiff led his evidence first. He was examined and cross-examined in full detail and his counsel closed his case, reserving his right to call evidence in rebuttal, if necessary. Defendants counsel thereupon argued that even assuming everything else in the plaintiff's favour, plaintiff had failed to prove any infringement on the evidence led by him, and that the defendants had, therefore, no ease to meet, or, as it is said in England, there was no case to go to the jury. Counsel, therefore, applied that the plaintiff might be non-suited at this stage and his suit dismissed.

(2.) The onus of proving the infringement is undoubtedly on the plaintiff. It has been held that the question of infringement is a mixed question of law and fact.. Plaintiffs counsel, in his opening, referred to Sowkabai V/s. Sir Tuttojirao Holkar (1931) 34 Bom. L.R. 6, and argued that this case could not be tried piecemeal, but in my opinion that case has no application here, because no issue has been tried as a preliminary issue. In fact, the plaintiff has led all his evidence on the issues, the burden of proof of which was upon him, and he has closed his case. In order, however, to determine the position arising at this stage of the trial, it is necessary to consider what the plaintiff has got to prove. This being a suit for infringement of the patent, the plaintiff must, under Section 29 of the Indian Patents and Designs Act (II of 1911), prove that during the continuance of the patent acquired by him under the Act in respect of an invention the defendants have made, sold or used the invention without his license or counterfeited it or imitated it. According also to Halsbury, Vol. XXII, para. 426, at p. 210, a patent may be infringed in several ways, one of which is by using the invention or any colourable imitation thereof in the manufacture of articles or by putting the invention in practice in any other way. The plaintiff, therefore, has got to prove that his process has been counterfeited or imitated by the defendants. It is necessary for him to give the particulars of the breaches constituting the alleged infringement of his patent rights, and he has given those particulars in exhibit B to the plaint. It has been stated in paragraph 3 of the plaint that the plaintiff craves liberty to give further and better particulars of the breaches, if necessary, after obtaining discovery, but he has not taken any steps to apply for the same, and the particulars he relies on are only those contained in exhibit B to the plaint. It may be mentioned here that these particulars are not put in proper form as they consist partly of particulars and partly also of comment. But discarding the comment and taking the particulars strictly so called, the plaintiff has alleged that compared to his process the material part of the defendants process is as described by him in paras, (a), (b) and (c) of exhibit B. The defendants process of treating betel-nuts is described by them in exhibit 2 to the written statement in all its component parts. Plaintiff in his cross-examination stated that he did not accept the whole of the description of that process in exhibit 2 as correct. It was, therefore, argued by defendants counsel that on the ground that plaintiff had not accepted the whole of the description of their process, and also on the ground that exhibit 2 had not been tendered by the plaintiff as an admission by the defendants of what their process was, plaintiff had really failed to prove any infringement, because he could not ask the Court to hold that a process which had not been proved as being the defendants process was a colourable imitation of his own. In my opinion it was not necessary for the plaintiffs counsel to tender exhibit 2 as the defendants admission. Exhibit 2 is annexed to the defendants written statement, and it is for the Court to consider whether the description of that process is consistent or inconsistent with the infringement complained of by .^ the plaintiff. It would have been otherwise if the plaintiff had said that exhibit 2 was not the defendants process at all, but that is not the case here. The plaintiff had also in his attorneys letter before the date of the suit alleged that the defendants were using his patented process, and the defendants by their attorneys reply said that their process was different from, and not an imitation colourable or otherwise of, the plaintiff's process.

(3.) What is the evidence as to the alleged infringement on which the defendants ask the Court that the plaintiff should be non-suited at this stage of the trial When the plaint was filed and the particulars of the breaches were annexed, a correct description of the defendants process was not before the plaintiff, and he, therefore, stated the details of comparison on information. Plaintiff treats his goods in a solution of bleaching powder and the defendants do the same. He further alleges that after treating the goods with bleaching powder he treats them in a solution of acetic acid, whereas defendants use a solution of muriatic acid, and that muriatic acid is only a chemical substitute for acetic acid. It is lastly stated that after treating the goods in the manner aforesaid both he and the defendants treat the same in sulphur dioxide under pressure. These particulars are annexed to paragraph 3 of his plaint. Defendants plead to paragraph 3 in paragraph 19 of their written statement. They say that the particulars are incorrect, but they do not clearly state how they are incorrect. If the defendants had not annexed a description of their process to their written statement, the plaintiff could not have asked the Court to pass a decree in his favour because of the alleged breaches which are stated on information and belief. He could have, however, asked for further inspection in connection with the defendants process. But that was obviated by the description of the defendants process annexed to their written statement. The plaintiff has at the end of his examination-in-chief compared the two processes, and stated what difference there is between the two. The plaintiff uses a three per cent, solution of bleaching powder ; the defendants use a four and a half per cent, solution. Plaintiff has stated that any variation between three to six per cent, could not make any material difference. Plaintiff was first using hydrochloric acid from which he changed to acetic acid. Defendants are using muriatic acid, and the plaintiff has stated that acetic acid and muriatic acid have the same chemical effect. On that, he has not been cross-examined, and I take it that there is no difference between the two for the washing away of the calcium deposited on the goods. The plaintiff has stated that he treats the goods finally in sulphur dioxide under pressure, and he alleges in exhibit B that according to his information the defendants did the same. Defendants in part 8 of exhibit 2 say that they treat the goods with sulphur fumes in a closed chamber according to the old method of burning sulphur in a " sigree ", leaving the goods exposed to the fumes for eight hours and more. It was argued on behalf of the defendants that the plaintiff had not specifically stated that the closed chamber used by the defendans was a pressure-tight chamber as used by him but in his examination-in-chief he said that when goods are treated with sulphur fumes in a closed chamber as described in part 8 to exhibit 2, some pressure on the goods would be generated. In his cross-examination on February 28 last he first stated that part 8 to exhibit 2 as described by the defendants indicates that the goods have been subjected to some pressure, but further down he said that if the description of the defendants process in part 8 to exhibit 2 to the written statement was correct, there would not be pressure. These are inconsistent statements, as they stand. He has, however, after comparing exhibit 2 with his own process, said that the particulars in exhibit B to the plaint contain the whole of his complaint as regards the alleged infringement. It cannot be said that this last statement is on information only, because he has compared the component parts of his process with the component parts of the defendants process as described in exhibit 2 to the written statement. Plaintiff's description of the comparison between the two may or may not be correct, but the two processes are now before the Court, and it is for the Court to say whether the plaintiff has made out a prima facie case of infringement. In my opinion this is a question which can reasonably be argued, and I cannot hold at this stage that the plaintiff should be non- suited. I wish to make it clear that I am not deciding on the question of infringement one way or the other. I am not holding that the plaintiff has proved the infringement. All that I hold is that there is some evidence of infringement which the defendants must meet. The case must, therefore/ proceed further on all the issues, and I order accordingly.