India: Hind Mosaic and Cement Works and Anr v. Shree Sahjanand Trading Corporation and Anr

Last Updated: 23 May 2008
Article by Manisha Singh

The factual matrix behind the litigation is that the appellant after intensive research, development and incurring huge expenses, invented the invention viz. "Polyvinyl Chloride threaded pipe joint system with coupler and wire locking device comprising two pipe joining components, two sealing rings, including a wire lock, the said wire lock is component being inserted into the groove which locks the coupler with the one end of the pipe joint, the said coupler joining both the ends using the threads, the said threads are made in the form of square type threads and the said sealing rings are fixed to both the ends of the pipes and coupler". The Patent Office in India, after following the entire rigorous procedure under the Patents Act right from application, publication of application, report by examiner and its consideration by controller, inviting objections, if any, etc duly granted Patent in favour of the appellant No. 1 on 2.12.2006. The inventor assigned the rights under the said patent in favour of the appellant No. 1 and the appellant No. 2 is the licensee of appellant No. 1.

The appellant learnt through an advertisement in the 'Gujarat Samachar' dated 5.6.2007 that an identical product described as "first kind of PVC Wire Lock System in the world" was being produced and marketed by respondent No. 2 through its distributor, respondent No. 1. The appellants filed Regular Civil Suit No. 1432 of 2007 in the Court of the Learned City Civil Judge, Ahmedabad under the provisions of the Patents Act. The appellants also filed application for interim injunction under the provisions of Order 39 Rule 1 and 2 of CPC. The Learned City Civil Judge, Ahmedabad vide his order dated 2.7.2007 granted ex-parte ad-interim relief in favour of the appellants.

On service of summons, the respondents appeared and filed reply as well as counter claim for revocation of patent. As per the provisions contained under Section 104 of the Patent Act, the entire suit proceedings were, therefore, transferred to Gujarat High Court and the suit was renumbered as Civil Suit No. 1 of 2007. Based on Bilcare Ltd. vs. Supreme Industries Ltd. 2007(34) PTC 444(Del), the primary question considered by the Learned Single Judge was 'whether it is a prima facie case for a valid patent or a prima facie caser for revocation of such patent'. On a conjoint reading of Sections 2(j) and 2(j) (a) with 3(f), it was concluded that the invention of the plaintiffs was a combination of known device arrangement of square threads, rubber seal and wire locking, which were all separately patented in the past under ISI specifications and US Patent, thus putting it in the category of exceptions to patentable inventions. The Learned Single Judge commented that the principles of irreparable injury and balance of convenience are against the plaintiffs, hence vacating the ex-parte injunction granted and also the application for interim injunction.

On appeal before the Division Bench of the same court (MIPR2008(1)402), the appellants relied on the principles enunciated in American Cyanamid Co. vs. Ethicon Ltd. (1975) 1 All ER 504 where it was affirmed that 'there is no rule that a plaintiff must make out a prima facie case'. The Division Bench opined that 'the Learned Single Judge had not considered the very vital aspect in its true perspective that the patent was granted under Sec. 48 of the Patents Act, 1970, whereby the rights of the appellant patentee was statutorily recognized. Subsequently, the decision of the Learned Single Judge was quashed, upholding the ad-interim relief ordered by the Learned Trial Judge.

As a result, a civil appeal (C.A No. 1759 of 2008) was preferred before the Supreme Court by the respondents in the intent case wherein the Apex Court Judges were of the view that the High Court Division Bench had not analysed Sec. 13(4) read with Secs. 47 and 48, particularly the scheme of the Patents Act with respect to the effect of counter claim. Thus, the impugned order of the Division Bench was set aside directing them to hear and decide the matter as expeditiously as possible.

Ultimately, Honourable Judges Mr. Justice Z.K. Saiyed and Mr. Justice D.A. Mehta of the Gujarat High Court gave the decision in the matter (C.A. No. 331 of 2007) on 27.3.2008. The Learned Counsels for both sides had worked out a consensus to proceed ahead with the hearing of the suit itself without investing time and labour in dealing with the application for interim relief wherein they formulated a schedule commencing on 15th April so as to arrive at the completion of the final hearing and the disposal of the suit between 15th and 30th June 2008. Further, both parties agreed to maintain separate accounts in relation to the dispute, thus making it easier for the Court to make appropriate directions irrespective of who succeeds. Thus, the appeal was disposed of with a request to the Learned Single judge to hear and decide the suit as expeditiously as possible. Moreover, the request made on behalf of the appellants that liberty be reserved to revive the Appeal in case of difficulty was also rejected.


The trademark of the intent judgement is the expeditious and efficient nature in which the matter was handled by various realms of the Judiciary. Despite the presence of complex queries requiring in-depth comprehension of various aspects of the Patents Act, 1970, ranging from Sec. 2 (j) to Sec. 48, the dispute which might have elicited a much longer litigation period under different circumstances, was brought to its penultimate stage fairly quickly. It is noteworthy that confusion with respect to Secs. 2 (j) and 2 (j) (a) being read along with Sec. 3 (f), as to what invention based on one or a series of past inventions can be patented, has been clarified to a major extent. The re-affirmation of the patentee rights provided under Secs. 47 and 48 are also praiseworthy.

The procedure involved at the penultimate stage before the Division Bench of the High Court is a milestone and a fit example for future litigations to follow, primarily because of the commitment of both litigating parties towards the spirit of the Judiciary, which is evident in their consensus in formulating a schedule for quick dispute resolution, their assurance to abide by the same and also their willingness to maintain separate accounts of the dispute so as to aid the Court in giving appropriate directions.

© Lex Orbis 2008

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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