LAKHPAT RAI Vs. SRI KISHAN DAS

JUDGEMENT

(1.) We have come to the conclusion that this appeal must succeed. There has been a very full discussion, upon somewhat unfamiliar lines in this Court; but we have no doubt as to the proper conclusion which ought to be reached. The appeal is brought by the plaintiffs, the registered patentees of a process of manufacture, the plaintiffs consisting of Lakhpat Rai, Sampat Rai, and Manphul Narain, and carrying on business at No. 14, Mullick Street, Calcutta, against a judgment dismissing their suit brought against the defendants Srikishan Das, Bahal Rai and Bhup Narain, carrying on business at Farrukhabad, for infringement of the patent. One Prag Narain who figures somewhat prominently in the case, is a member of the plaintiffs firm, but, for reasons best known to the plaintiffs, was not one of the applicants for the patent and is therefore not a necessary party to the suit. The ground upon which the suit was dismissed was a question of fact, namely that the process for which the plaintiffs had obtained their patent had been anticipated and was one of common use in the trade.

(2.) Speaking for myself, I think it desirable to make one or two general observations. The patent law is a provision made by the Legislature for the encouragement of research, industry and progress. It rewards genuine discoveries by giving them a limited monopoly and thereby seeks to encourage commercial enterprise and development. A patent-suit in which the validity of an alleged discovery is challenged is one in which the courts would seem to have a right to expect candour and honest dealing and genuine assistance in the often complex and difficult technical question of ascertaining whether the alleged new process is really a good subject matter for a patent. In this case the parties appear to be men of position in their own commercial circle. Each has charged the other with the perpetration or attempted perpetration of a mean and contemptible fraud. There has obviously been a mass of hard swearing which has enormously increased the difficulties of the task thrown upon the Court. We have had to do our best to sift the truth from a mass of untruth. Apart from this aspect of the case, which must seriously have prolonged the litigation, there is even a graver aspect. It is regrettable, and it is a matter to which those who are interested in the industrial development of this country might well direct their attention, that commercial disputes of this kind should be tainted by a mass of palpably dishonest evidence, unfair methods of competition, and conduct which decent people cannot but reprobate. Moreover, the conduct of the case in court, (we are saying nothing about the learned gentlemen who appeared for either party before the Subordinate Judge who gave judgment in Farrukhabad; we refer particularly to some of the incidents when evidence was taken on commission) is characterized by a method of cross-examination in the case of independent and respectable professional witnesses, which is worthy of the worst tradition of the lowest forms of litigation and which is calculated, if indulged in as a practice in the way in which it was indulged in this case, to make our trial courts a terror to self-respecting men and to produce a state of things under which only those will care to come and give evidence who have no character to lose. We may say at once as we are differing from the view of the facts taken by the lower court, that we find very little assistance in the Subordinate Judge s judgment. It consists of a considerable amount of painstaking criticism., some of which is difficult to follow, some of which we find ourselves unable to agree with, while some of the conclusions are so vague or so over-burdened with details that their weight is largely discounted. We, therefore, have to approach the consideration of the mass of conflicting evidence in this case unobscured by the existing decision and to form an independent judgment of our own. In one respect we are not at a very serious disadvantage. It so happens that the majority of the principal witnesses in the case were examined either on commission or by the learned Subordinate Judge s predecessor and were therefore not seen or heard by the learned Judge any more than they have been by us, The controversy arises in this way. About the 23rd of June, 1915, the plaintiffs applied to the Patent Office in Calcutta for a patent, the claim for which and the specification for which is contained in the document before us, Specification No. 2191. The claim related to the manufacture of an ancient and well-known medicinal commodity called banslochan. As a matter of interest we may quote here the chemical description of this article as found in Professor Thompson s Pharmacopoeia.

(3.) The powder in question, which is manufactured by a calcining process from bamboo, is said to be a medicine for the home, and to possess certain restorative and invigorating qualities for the old as well as for the young, which, if they do not entirely fulfil their promise, may at any rate account for its undoubted popularity. The powder is made from the interior of bamboo which is found in Singapore, by baking or calcining. According to the plaintiffs this process has up to, generally speaking, June, 1915 been carried out by means of iron pans when the commodity is prepared in any substantial quantities. Of course they do not allege, and no sane person could allege, that ordinary earthen-ware pans could not be and indeed were not in fact used from time to time by persons who wanted to prepare a small quantity for their own use without delay; but as a matter of trade use, when the manufacturer is preparing the stuff in any quantity for the market, according to the allegation of the plaintiffs, the ordinary known method was by the use of iron pans in which the stuff was placed for the purpose of being cooked under great heat in a stove. According to them also the effects of the use of iron pans were to produce a rapid and intense heat operating directly upon the material; to make the cost of the stove somewhat greater than if ordinary earthen-ware pans were used, particularly because the tendency of the iron pan was to wear out quickly, and also to produce in the substance itself what has been called a brownish or reddish tint, specimens of which we have seen in bottles which have been exhibited in the case, and which is regarded in the market by, those who know the stuff well, as something which, without being a serious drawback, makes the article inferior to the best standard. According to the plaintiffs also they were constantly worrying and working by experiments of various kinds to arrive at some satisfactory process of heating which would be cheaper and more satisfactory than the old method, and in substance they claim by this patent to have achieved that result by a combination of earthen-ware vessels placed one upon the top of the other in the stove as described and delineated in the specification, which method, they say, has the superior advantages of securing a slower heat, enabling the material to be treated (as it always is treated at some stage and in some form or another) with sulphuric acid at a red heat, of confining the fumes produced by the sulphuric acid within a closed crucible, and of producing a better colour of pure white or bluish white. There is less risk of the brownish or reddish tint manifesting itself, and the production is regarded in the market as superior in appearance and quality and costs less. Another feature, according to their allegation, which distinguishes the new process from the old, is that in the latter stove there was a chimney of greater or less height which carried away the fumes. The specification was ultimately accepted and was published to the world by a formal notice in the Gazette of India of the 16th of October, 1915, in the following terms; "Improvements in the manufacture of a medical preparation, Patent No. 2191," which, we feel bound to say in passing, cannot be regarded as a satisfactory mode of summarizing the real claim which had been accepted by the office.