India: Delhi High Court Decides On The Applicability Of The Doctrine Of Election To Patents.

Last Updated: 7 June 2011
Article by Sonam Lhamu Bhutia and Vasundhara Kamath S

The case of Dr. Aloys Wobben v Yogesh Mehra & Ors, is a part of the ongoing legal conflict between Dr. Aloys Wobben and Enercon (India) Limited. The Petitioner, Dr. Aloys Wobben is the owner of EnerconGmBH, a leading German Company producing windmills. The legal conflict is in relation to the decision of the Intellectual Property Appellate Board (hereinafter referred to as IPAB) striking down 12 patents claimed by Dr. Wobben as belonging to him. Mr. Yogesh Mehra, the opponent, is the Managing Director of Enercon (India) Limited.

This case deals with the applicability of the 'Doctrine of Election' to Patents. As a rule, in law, one is not allowed to invoke two parallel remedies in a matter. The question addressed by the Delhi High Court in this case was, whether, in relation to patents, the Doctrine of Election would disallow a person from invoking a parallel remedy. In the present case the Petitioner approached the Court with the plea that since the Respondents had already applied for cancellation of the Petitioner's patent, they had to be directed to withdraw their Application for rectification of patent, which was a parallel and concurrent remedy.

The Respondent had sought rectification of the Petitioner's patent under Section 117-G of the Patents Act, 1970 before the IPAB and also sought cancellation of the said patent under Section 107 before the Court. The Petitioner was of the opinion that once a statutory right had been availed, there was no question of invoking a parallel remedy. The Petitioner also alleged that the pursuing of such concurrent remedies would hamper the progress of the suit.

The Respondent, on the other hand, claimed that the Doctrine of Election could not oust the statutory remedies, which could only be waived consciously. It was also brought to light that the Madras High Court had, in relation to the current dispute involving the Petitioner's patent, directed the IPAB to complete the rectification proceedings. Hence, any contrary directions by the Delhi High Court would be in conflict with the directions of the Madras High Court, which were binding on the parties.

The Respondent stressed on the point that although the grounds for seeking cancellation or revocation of patent were the same outlined in Section 64, the separate fora were consciously provided for by the Legislature. As a result, they were free to employ both remedies against the Petitioner.

The Court, after hearing both sides, dealt elaborately on the 'Doctrine of Election'. The doctrine, the Court observed, had been well accepted as a branch of the 'rule of estoppel', as had been clearly laid down in several cases, including National Insurance Company v. Mastan and anr. [2006 (2) SCC 641]. It was based on the fundamental rule that one cannot approbate and reprobate.

The Court considered the case of Andhra Pradesh Financial Corporation v. Gar Re-rolling Mills [1994 (2) SCC 647], relied on by the Plaintiff, wherein it was held that the Doctrine of Election was applicable if there were two or more remedies available and if the ambit and scope of the remedies was same. Hence, there would be an option to elect either remedy.

However, the Court also considered the clarification given by the Supreme Court in the aforementioned case, as well as in Devasahayam (Dead) by LRs v. P. Savithramma [2005 (7) SCC 653], that there could not be any estoppel against a Statute and hence, concurrent statutory remedies could be pursued.

There have been different statutory remedies provided for the challenging of patents at different stages. First of all, Section 25(1) and (2) have been made available, which deal with pre-grant and post-grant challenge of patent, respectively, before the Controller. The same is appealable before the IPAB, as per Section 117-A of the Patents Act, 1970. Revocation of patents has been permitted by the Act under Section 117-G. There is provision, as per Section 107, for challenging the patent as a counter-claim in an infringement allegation.

After considering the available statutory remedies, the Court was of the opinion that though the remedies seem to be overlapping, they may not be availed simultaneously. It also opined that a patent, unlike other intellectual property rights, does not come with a presumption. Taking into account these factors, the Court listed several instances wherein the need for availability of concurrent remedies was highlighted. The Court thus held that if an independent statutory remedy was not allowed to be pursued, it would be contrary to statute and would also be against public policy. The application of the Petitioner was therefore rejected.

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