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TMI Blog2001 (11) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code of Civil Procedure, 1908 and the order dated 27.11.2000 dismissing is No. 6504/2000 filed by the appellant after the judgment had been reserved by the learned Single Judge on the injunction application. 2. It is appropriate to observe at this stage before considering the rival contentions advanced on behalf of learned counsel for the parties that this appeal has to be decided within the parameters laid down by the Supreme Court in the case of Wander Limited and Anr. v. Antox India P. Ltd . Thus, in terms of the said decision this court will not interfere with the exercise of the discretion of the court of first instance, which is the order of learned Single Judge, and substitute its own discretion except where the discretion is shown to have been exercised arbitrarily or capricious or perversely or where a court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. This court has also not to reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material placed before it. There mere fact that this court may have rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g contactors as set out in the said agreement. The respondent was aggrieved in respect of manufacture and sale of D2 range of contractors and other products by the appellant which according to the respondent did not form a part of the technical services agreement but was a new invention and had not been offered to the appellant. This D2 range is claimed to have been sold in India directly by the respondent through its Indian subsidiaries under the name of Telemecanique. The respondent was aggrieved because of the manufacture and marketing of similar products to D2 range of the respondent by the appellant. The rival contention advanced on behalf of the appellant in their written statement was that D2 range of products is nothing but an improvement or modification of the D1 range of products and the respondent was bound to give to the appellant improvements and modifications relating to the D1 range of products in terms of the technical services agreement dated 28.11.84. It was also stated that internationally this range of product was not called the D2 range of products and the said label had been assigned only in India by the respondent so as to avoid its obligations under the tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l true proprietor of the designs was LTE and it is claimed that on 8.10.99 LTE merely filed the request for recording the change of the name from LTE to the name of respondent which is after filing of the present suit. Thus the appellant has contended that the title could not have been passed since the LTE had failed to apply within the prescribed period of 6 months from the recording date of the deed of assignment dated 28.3.94 in terms of Section 68 of the Patents Act, 1970 and Rule 73 of the Patent Rules, 1972 framed there under. The scope of this controversy was further extended by the subsequent application is 6504/2000 filed by the appellant alleging suppression of material documents and facts by the respondent. This plea arose out of the claim of the appellant that the agreement to confirm dated 30.9.97 said to be between Schneider Electric, SA and the respondent and the deed of assignment dated 23.8.99 are fabricated and sham documents. The agreement to confirm dated 30.9.97 is alleged to neither field nor mentioned in the plaint in the present suit. This position is disputed by the respondent claiming that this very document was not field as the contract of contribution wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration. The chart shows the two alternative avenues and the inconsistency if any. On the other hand, Mr. Mukul Rohatgi, learned senior counsel for the respondent has contended that though there may be some discrepancies in sum and substance the locus of the respondent had been established and if only the first channel in the chart is perused it would show that the claim of locus by the respondent was established. 11. Though considerable time was spent on rival submissions on this account alone, we are of the considered view that the learned Single Judge had rightly observed that the aspects stated therein would not prima facie disentitle the respondent to maintain the suit at this stage and at best these were matters to be gone into at the stage of trial and thus the suit could be maintained. 12. The second issue relates to the plea of lapsing of design registered on which the learned Single Judge, on appreciation of the documents in question, has observed that the renewal is making patents current up to date and thus prima facie case of the validity of the registrations are made out. We again see no reason to interfere with the factual finding of the learned Single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention advanced on behalf of the respondent herein that there has been no admission of the fact that the subject matter has no artistic conception. Another important aspect is that there is no claim of prior publication or user by the appellant and the Design has existed for a period of 8 years. The learned Single Judge, Therefore, in our considered view, rightly concluded that prima facie a case had not been made out at this stage of the respondent s design registration being merely of functional shapes and devices. We have also been taken through the photographs on record and the contactors have also been produced before us. We are prima facie of the view that there are features in respect of the products which are visible to the eye and at this stage it cannot be stated without further scrutiny after evidence that despite the registration, the respondent should be disentitled to the benefits accruing from such registration. 15. The fourth plea considered by the learned Judge is somewhat technical in nature as it arises out of the contentions advanced on behalf of the counsel for the appellant that the patents are invalid in view of the fact that patentee features are in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant itself has claimed spending huge amounts totalling to ₹ 4 crores on the Research and Development of the D2 range. Thus for the appellant to categories such huge amounts being spent on mere workshop improvements would not be prima facie sustainable. This is not to say that the contention of the appellant of having spent this amount has been accepted but that the two pleas taken together by the appellant prima facie do not stand scrutiny. Further the report of Mr. Dujardin, as stated above, has set out the major differences between the D1 and D2 range of products specially cataloguing the new features of D2 range. 17. It is also significant to note that initially the appellant had claimed that D2 range was an improvement over the D1 range and were thus entitled to the same in view of the technical services agreement but subsequently proceeded to develop, manufacture and market what is stated by the appellant to be the equivalent to the D2 range without invoking their rights under the technical services agreement. This aspect is dealt with subsequently while dealing with the aspect of the minutes recorded and the plea of the appellant based on acquiescence and estopp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in this matter was very clear. TE was ready to deepen this issue; even if some products were common D2 and F were totally new products, having different characteristics. This was a new technology and one very good argument was that if TC intended to manufacture the same, as was expressed in the last Board meeting, he would wish good luck inasmuch as manufacturing these products was very costly. Mr. Rene Alletru further stated that TE did not wish to grant new manufacturing rights to TC. TE's decision had been explained before the Board Members and TE still felt that there were large differences of views between the two companies and that was why Mr. Andreu had written his last letter. (emphasis supplied) 20. Thus Mr. Chidambaram contended that Mr. Alletru had wished good luck to the appellant to manufacture the products and claimed that this aspect had escaped the attention of the learned Single Judge. It was further contended that the respondent apparently never thought that the appellant would be able to manufacture the D2 range of products and the appellant having done so, the respondent was now preventing the appellant from continuing to market the product. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being sold by the appellant as a equivalent product is nothing but a process of reverse engineering in view of the fact that it was admitted before us during the hearing of the appeal by the learned counsel for the appellant that what was being marketed by the appellant was in fact copy of D2 range of the respondent. However, what was contended before us was that these minutes should be read as a license to copy. We are afraid that we are unable to read anything in the minutes which can entitle the appellant to copy the D2 range of the respondent. Thus the pleas of estoppel, acquiescence cannot be sustained. It further cannot be appreciated that if the appellant was only engaged in copying the product of the respondent then why such a large amount would be spent on R D. There seems to be inconsistencies in the plea of the appellant. 23. It may be also relevant to note the contention advanced in this behalf by Mr. Chidambaram, learned counsel for the appellant that the composition of the company was such that the respondent was always aware of the progress in the activities of the appellant company. In this behalf attention was invited to the shareholders agreement dated 22.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ₹ 4 crores as the sixth aspect. It was contended by Mr. Chidambaram, learned senior counsel for the appellant, that the respondent waited for the appellant to spend huge amounts on development of this project which is not only required for research and development work but also for manufacturing of the different moulds for the product and only when the respondent realised that the appellant had been successful in manufacturing and marketing of the product that they approached the court to cause loss to the respondent. The learned Single Judge has analysed the balance sheet for the years 1995 to 1999 to arrive at the conclusion that only an amount of ₹ 64 lacs has been spent on R D. The subsequent certificate of Chartered Accountant explaining this has not been accepted by the learned Single Judge as there was no clear reason given for the appellant not to claim the R D expenses in the balance sheet which would be tax deductible in nature. Mr. Chidambaram, learned Senior counsel for the appellant, sought to contend that the total expenses have to be seen not only for R D but for manufacture of the moulds etc. as mentioned above. The learned Single Judge has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive patents are not being worked by the respondent in view of the statement produced by the respondent for the year 1998-99. 29. Mr. Mukul Rohatgi, learned counsel for the respondent has also relied upon M/s National Research Development Corporation of India, New Delhi v. The Delhi Cloth General Mills Co. Ltd. and Ors. AIR 1980 Delhi 132 to contend that if the patents are more than 6 year old and there has been actual user, there must be presumption of validity of patent. In the present case the patent have existed unchallenged for a period of 8 years. It has been further contended by Mr. Rohatgi that it is not required in case of a violation of the patent that the person violating the patent knew about it in view of the monopoly having been created in favor of the appellant. 30. It has to be appreciated that undoubtedly patent creates a statutory monopoly protecting the patentee against any unlicensed user of the patented device. Thus once a violation is established in case of a registered patent, subject of course, to the patent being used, it will not be permissible to contend that the said patentee is not entitled to an injunction. A monopoly of the patent is the rewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the balance of convenience lay in grant of temporary injunction and that irreparable loss and injury was likely to be suffered by the respondent in view of the respondent being the registered owner of the patent and thee being violation of the same by the appellant. We may further note that out of the total life of a patent of 14 years almost 11 years have now elapsed. The learned Single Judge duly considered all the aspects and we see no illegality or arbitrariness in the impugned order and thus there is no reason to interfere with the findings of the learned Single Judge. 33. In the end we may note that learned Single Judge has also recorded that he has taken note only of the prima facie view of the factors which were considered for the purpose of interim order and has not considered all pleas and authorities cited. The same position arose before us where copious written submissions and a large number of judgments were filed but we have considered the submissions advanced before us keeping in mind the legal position and the facts on record as emerged from the orders of learned Single Judge. 34. The appeal is consequently dismissed with costs of ₹ 5,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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