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TMI Blog2007 (8) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... the back of the defendant No. 2 and 3. 4. Taking up the application under Order 7 Rule 11 CPC first, I proceed to deal with the objections that the plaint and the documents filed with it, do not disclose a cause of action against the defendant. 5. While dealing with an application under Rule 11 of Order 7, in order to decide whether the plaint discloses any cause of action or not, the Court has to examine only the allegations made in the plaint and the documents filed with it. Where the allegations made in the plaint, prima facie, disclose a cause of action, the plaint cannot be rejected. [See 60(1995) DLT271]. 6. The plaintiff states that it is carrying on the business of manufacture of various consumer products. The present suit has been filed by the plaintiff seeking the relief of permanent injunction, rendition of account and damages on the basis of the alleged infringement of its patent in respect of a gravity fed water purification system, by the defendants. 7. The plaintiff, it is averred, had in the year 2002 developed and invented a gravity fed water purification system assuring a high degree of microbiological purity in the drinking water it delivers. The plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly infringes the substance of the plaintiff's patent claim. The plaintiff has also produced a comparative chart of the components of both products in paragraph 13 of the plaint. It is alleged that upon enquiry it transpired that a patent application was filed in the name of defendant No. 3, on or about 29th March, 2004 and notified in the official Journal dated 11th February, 2005. Since the Journal was published late, the plaintiff learnt of this application only sometime in July, 2005. plaintiff carried out an inspection of patent journals and found that there was no notification of a grant of patent on the said application. Thereupon the plaintiff promptly made a representation of opposition to the Controller of Patents, Chennai under Section 25(1) of the Patents Act which was filed on 18th August, 2005. 10. It is averred that the patent office did not notify the application of the defendant's patent. It proceeded to grant a patent to the defendant, and by a letter dated 30th September, 2005 and informed the plaintiff of the same. The plaintiff pointed out this omission on part of the Controller of Patents by a letter dated the 18th October 2005 followed by reminder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a patent in a particular case. It is argued that the remedy available to the plaintiff against another patentee is not by way of a suit for permanent injunction, since the defendant patentee has absolute and unhindered right to market and sell its products. It is argued that the right of the plaintiff, if any, to institute a suit for infringement under Chapter xviii of the Patents Act cannot be superior to the protection afforded to the defendant patentee, who has an equally valuable patent in its favor. It is argued that if the defendant is not in a position to enjoy the privileges arising out of its own patent, then the right of the defendant patentee to enjoy and exploit its patent would become illusory. Since the right to institute a suit for infringement originates from the right of the patentee to exploit its patent, it is argued that a patentee can under no circumstances be an infringer. The Patents Act provides for both pre-grant opposition as well as post grant opposition under Section 25. So long as the defendant's patent subsist he cannot be called an infringer and consequently, a suit for infringement by another patentee is not maintainable. Reliance is placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to terms with B. A patent is not a seal of government approval, nor a permit to carry out the invention. We very often hear 'This patent allows Company X' to do something or other. It does not, it only allows them to stop someone else from doing it. The right to prevent others from carrying out the invention claimed in a patent may be enforced in the courts; if the patent is valid and infringed the court can order the infringer to stop his activities, as well as providing other remedies such as damages. 15. The plaintiff argues that the defendant is guilty of infringement of its patent, as the defendant's product is clearly covered by the claims contained in the plaintiff's patent. The plaintiff also argues that the defendants patent is subsequent to that of the plaintiff. The plaintiff, by relying upon Section 45 of the Patents Act contents that the patent dates back to the date of publication of the patent. The plaintiff's application was published in December 2003, though granted in the year 2006, while the defendant's application was published in March 2004, though granted in May 2005. The plaintiff claims priority from 19th June 2002 whereas, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have, in all probability found mention in Section 107A or in some other provision of the Patents Act. 19. Section 108 enumerates the reliefs available to a plaintiff in a suit for infringement and states that the reliefs that a court may grant in a suit for infringement may include an injunction and, at the option of the plaintiff, either damages or on account of the profits. 20. If the argument of the defendant is accepted, it would mean that first the plaintiff should pursue its opposition to the patent of the defendant under Section 25(2), or seek the revocation of the defendant's patent under Section 64, and only after the plaintiff has succeeded in such proceedings finally, would be plaintiff be entitled to seek the relief of injunction and damages or accounts of profits, or any other relief such as seizure, forfeiture or destruction of the infringing goods. Such an interpretation would lead to absurd results. By the time the defendants patent is revoked /cancelled, the plaintiff's suit may itself become barred by limitation, if the plaintiff is first relegated to proceedings under Section 25 or 64 before he is permitted to file a suit for seeking the reliefs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection against any claim for patent having a later priority date. This is a fundamental difference in the present case, when compared to the statement of law contained in Tobu Enterprises (Supra) pertaining to the Designs Act, 1911. Consequently, the decision in Tobu Enterprises (Supra) in any case cannot be relied upon in a case governed by the Patents Act. I may notice that Tobu Enterprises (Supra) has been disagreed to by another single bench decision of this Court in Alert India (Supra). However, I am not getting into the controversy, as to which of the two views is correct, and whether the earlier or the later view is per in curium, since in my view it is unnecessary for me to do so far the purposes of the present case. Moreover, being only a tentative view on a prima-facie evaluation of the merits of the case, interim orders do not constitute binding precedents, not even in the same case in which they may be passed, much less in the facts of another case. 23. Since S.S. Products of India (Supra) is also a decision on an application under Order 39 Rule 1 2 CPC, and not on the issue of maintainability of the suit, and it relies on Tobu Enterprises (Supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court would have jurisdiction to entertain the present suit. 27. The submission of the Defendants that no cause of action arises within the jurisdiction of this Court because, according to the Defendants, the plaintiff has no sales in Delhi, is to my mind unacceptable. Under Section 24 of the Patents Act, every patent shall have effect throughout India. Under Section 48 of the Patents Act, the patentee of a product has the exclusive right to prevent other parties, who do not have its consent, from making, using, offering for sale, selling or importing for those purposes, the product in India which is the subject matter of patent. Consequently, the patentee is entitled to prevent other parties from offering for sale or selling the products which infringe the patent in any part of India wherever they may be sold. Admittedly, the Defendants are selling their products in Delhi. The infringement of the plaintiff's rights under Section 48 of the Patents Act Has Therefore, taken place in Delhi, assuming that the plaintiff has a valid patent and that the defendant s product infringes the same. It is this infraction of the plaintiff's rights which would give the plaintiff the cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant in support of his application under Order 7 Rule 11 CPC is that the suit has not been filed by a duly authorized person. The plaint has been verified by Mrs. Madalsa Srivastava. However, no power of attorney nor a Board Resolution authorising the said signatory to institute the present suit has been filed on record. 30. This submission of the Defendants is also without any merit for purposes of deciding the defendant s application. As aforesaid, there is a categorical averment in the plaint itself which states that Mrs. Madalsa Srivastava Product Development Manager, Water, of the plaintiff has signed the plaint and instituted the present suit being duly authorised and competent to do so on behalf of the plaintiff. This statement of the plaintiff has to be accepted as correct for the present. This is also an issue which can only be decided one way or the other after a trial and the plaint cannot be rejected at this stage. Consequently I dismiss I.A. No. 9649/2006 with costs of ₹ 20,000/-. I.A. No. 9648/2006 31. The Defendants seek deletion of Shri Lalit Wadhwa from the array of Defendants since it is claimed that he is neither the manufacturer, nor seller of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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