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
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
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
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
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