9911796707
TMI Blog1979 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... developed by certain inventors of Central Electro-Chemical Research Institute, Karaikudi, Tamilnadu (hereinafter referred to as 'CECRI') an institute of Council of Scientific and Industrial Research, (hereinafter referred to as 'CSIR') that the said patent was originally granted in favor of CSIR, New Delhi who assigned the same to the plaintiff vide Assignment Deed dated 22nd May, 1979 for further development and exploitation of the patent process in accordance with a previous agreement dated 27th November, 1956 between the CSIR and the plaintiff. The invention is defined in claim Nos. 1 and 3 of patent No. 138571 as follows: 1. A: process for the preparation of an Anode Assembly for Diaphragm Cells in the electrolysis of alkali, metal halide solutions which consists in (i) providing valve metal anode base of a valve metal or an alloy of valve metals such as titanium, zirconium, niobium, tantalum , tungsten especially titanium which are resistant to corrosion in aqueous electrolytes especially in the electrolysis of saturated brine to chlorine-alkali in diaphragm cells in the form of strips, perforated sheet or expanded sheets, shaped cylindrical, U bend or rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve violated the plaintiff's right by manufacturing or using anode assemblies in accordance with the plaintiff's Patent No. 138571, that the anode assembly manufactured and sold by the defendants is an exact replica of the anode assembly of the plaintiff's patent, that the defendants have thus infringed the plaintiff's patent, and that the infringement of the defendants is causing irreparable loss and in jury which cannot be adequately compensated. 2. The defendants in the written statement and reply to . the application plead that the plaintiff is not an assignee by virtue of the deed dated 22nd May, 1979 because the plaintiff's name has not been entered in the Register of Patents as proprietor and before such an entry under Sections 63 and 69 of the Act the plaintiff is not a 'patentee' within the meaning of the Act, that the plaint has not been signed, verified and instituted by a duly authorised person that the alleged patent No. 138571 is liable to be revoked on various grounds mentioned in Section 65 of the Act, that the defendants developed there is own technology and are in a position to render expertise and working know-how regarding High Ampe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms and conditions governing their rights and obligations and the application for registration of such deed is filed with the Controller within six months of the execution of the document. Section 68 of the Act has thus been complied with. 6. The plaintiff also made another application under Section 69 of the Act for the registration of its title. This application was also filed on 31st May, 1979 but was acknowledged by the Patents Office on 6th June, 1979. The title of the plaintiff under the deed dated 22nd May, 1979 was registered in the Patent Office on 27th August, 1979. The argument of the learned counsel for the defendants is that the Assignment Deed was registered on 21st June, 1979 under Section 68 of the Act and the title of the plaintiff was registered under Section 69 of the Act on 27th August, 1969 i.e. after the institution of the present suit and Therefore the plaintiff has no locus stand as it is not the 'patentee' within the meaning of Section 2(p) of that Act. Section 2(1)(p) of the Act is as under: 2. Definitions and interpretations- 1. In this Act, unless the context otherwise requires- (a) to (o) ............... (p) 'Patentee' me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pposition that the patent is valid. The most cogent evidence for this purpose is either that there has been a previous trial in which the patent has been held to be valid, or that the patentee has worked and enjoyed the patent for many years without dispute, or it may be that as between the parties the plaintiff is relieved from the onus of establishing validity, as where the defendant has admitted, it or is so placed in his relationship to the plaintiff as to be estopped from denying it . The parties have placed on record correspondence between them, from which the defendants infer that there was joint collaboration between the parties for the patent in question. The defendants however plead that they have been in the know-how of the patent prior to the alleged invention of the plaintiff. The two statements appear to be contradictory to each other. If the defendants were in the know-how of the process which has been patented there was no question of joint venture with the plaintiff. The provisional specification of the patent was filed on 4th December, 1972, complete specification was filed on 26th November, 1973 and the acceptance of the complete specification was advertised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udy the proposal with regard to its implementation. Suggestions were made to the defendants that the total funds required for carrying out the developmental work for five years, was approximately about ₹ 35 lacs and if the defendants were agreeable to take part in the developmental work the terms and conditions would be negotiated and the outcome would be put before the Board of the plaintiff. 9. On 8th December. 1973 there was discussion between the officers of the plaintiff and Dr. R. K. Gupta of the defendants. Dr. Gupta wanted to know the terms and conditions on which the know-how of fabrication coating and use of TSI Anodes developed at CECRI can be made available to them. By letter dated 13th December, 1973 the plaintiff wrote to the defendants, terms on which the know-how on fabrication, coating and use of TSI Anodes developed at CECRI can be made available. The plaintiff quoted a lump sum premium of ₹ 7.5 lacs and recurring royalty at ₹ 25/- per tonne of caustic soda produced for a period of ten years on the basis of non-exclusive license. Dr. R. K. Gupta in his letter dated 24th December, 1973 wrote to the plaintiff that the figure of ₹ 25/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of the Anode in question or Anode structure. Similarly letters dated 21st April, 1972 and 23rd June, 1972 from the defendants to CECRI, do not refer to the process for the manufacture of the TSI Anode in question. 13. From the correspondence and other material on record it appears that the defendants wanted a license and they admitted the validity of the process which has been patented. If the defendants were aware of know-how already, why they were negotiating with the plaintiff for a license. The patent in question is more than six years old and under Section 68 of the Patent Act the patentee has the exclusive right by himself, his agents, or licensees to use the process. The patent relates to the process of manufacturing Anode, which is also used for the manufacture of Caustic Soda. Prima facie the patent in question is not invalid. If the defendants are not injuncted they would violate the patent and this would become a precedent for others to violate the patent. The balance of convenience would Therefore be to injunct the defendants. The plaintiff has made inventions and Therefore if the patent is allowed to be violated by defendants the plaintiff is likely to suf ..... 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