* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 29th October, 2009
Date of Order: November 11, 2009
IA No. 5552/2009 in CS(OS) No. 753/2009
% 11.11.2009
AIA Engineering Ltd. ... Plaintiff
Through: Mr. Ashwin K. Mata, Sr. Advocate with
Mr. Abhimanyu Mahajan, Mr. Rasesh Parikh &
Ms. Manmeet Sethi, Advocates
Versus
Magotteaux International S.A. & Ors. ... Defendants
Through: Mr. A.M.Singhvi, Sr. Advocate with
Mr. P.N.Sewak, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
This application is made under Order 39 Rule 1&2 read with Section 151 CPC by the plaintiff with a prayer that the Court should pass an ad- interim injunction restraining defendants or their group companies, successors in interest, subsidiaries jointly and severally from proceeding or prosecuting any action suit or complaint covering any of the subject matters of CS(OS) No. 189 of 2006 including complaint lodged before United States International Trade Commission dated 21st March, 2008. A further prayer is made for restraining defendant no.1 or its agents from initiating any action against the plaintiff with respect to or touching issue of technology concerning 'Composite Wear IA No. 5552/2009 in CS(OS) No. 753/2009 Page 1 of 5 Component' and other subject matters of Suit CS(OS) No. 189/2006 and restraining defendant no.1 or its agents from causing interference in use of technology of Composite Wear Component as described in PCT application No. PCT/EP97/04762 dated 27.8.1997 by the plaintiff.
2. The present application has been made in suit no. CS(OS) No. 753/2009 however, the plaintiff had earlier also filed a suit being CS(OS) No. 913/2008 against the same defendants with similar/same relief and made an application under Order 39 Rue 1&2 CPC. That application was allowed ex parte by Single Judge and an anti-suit injunction was granted by the Single Judge vide order dated 13.5.2008. The defendants against this ex parte order preferred an appeal before the Division Bench being Appeal No. FAO(OS) No.280/08 and the Division Bench of this Court allowed the appeal and vacated ex parte injunction and allowed the defendants to proceed further with the complaint pending in the US. The application under Order 39 Rule 1&2 CPC in CS(OS) No. 913/2008 has not been finally disposed of and during the pendency of the previous application in the previous suit, plaintiff has filed this fresh suit with almost same pleadings, same parties and made another application under Order 39 Rule 1&2 CPC seeking same relief. I consider that filing of the present suit and application was a patent and gross misuse of judicial process. The plaintiff instead of prosecuting his first suit and the application, has brazenly filed another suit in respect of same relief against the same defendants with another application for interim injunction, in the teeth of the order of the Division Bench, stating that the order of Division Bench passed on 14.11.2008, being an interim order was neither conclusive nor binding. I consider that this averment itself is contemptuous. All interim orders IA No. 5552/2009 in CS(OS) No. 753/2009 Page 2 of 5 passed by the Courts are binding on the parties so long as they are not set aside or they are not altered or varied. The plea of the plaintiff that the judgment of the Division Bench, setting aside the interim order and giving liberty to defendant to prosecute its action before USITC had no binding effect, is a baseless plea and the present application is liable to be dismissed on this ground itself.
3. In nutshell, the facts relevant for the purpose of considering the present application on merits are that the defendants filed a suit CS(OS) No. 189/2006 alleging infringement of its Indian Patent against the plaintiff. This suit was withdrawn by the defendants. Defendants had also obtained reissue patent no. 39998 in US and filed a complaint before the USITC in respect of this reissue patent. The present suit is filed by the plaintiff to restrain defendant from prosecuting its complaint before US ITC and other injunctions.
4. Nowhere in the world are global patents awarded by any country. The only 'community patents' are given in some countries of the Europe which are termed as 'European Patent'. Even the 'European Patent' granted in the Europe is split up into a bundle of national patents. It is national patents which have to be enforced before national Courts and each country has a right to enforce and consider matters of infringement of patent registered in that country. In absence of a system of awarding global patents and in absence of International Courts which enforce global patents, every patent holder who alleges infringement of its patent registered in that country has to bring action before the Court of that State. The possibilities exist when a patent is registered in more than one state and infringement occurs in more than one State or there are parallel infringements in more than one State, in such cases infringement IA No. 5552/2009 in CS(OS) No. 753/2009 Page 3 of 5 actions are to be brought in all those States where infringements have taken place and there is no mechanism by which a Single Court in any of the States can prevent infringement in all the countries. Unless the patent laws of all the countries are harmonized and one single International Law is brought into force in all the countries, the national Courts or the Courts where actions for infringement of patents registered in that country, is brought will have jurisdiction limited within boundaries of that State. The theory of jurisdiction of the Court where patent is registered is justified by the sovereign Act of the State in which issue of patents necessary involves the national administration authorities for registration of patents and its own attitude and law regarding registration of patents. It is very much possible that registration of a patent of a device may be denied by one nation and may be allowed by other. One country may have casual approach, other may have strict approach. Thus, law of patent varies from country to country.
5. If a patent is registered in India and a suit for infringement is withdrawn in India that would not debar the patent holder of a patent in USA from bringing action before US authorities in respect of patent or reissue of patent in USA. Moreover withdrawal of a suit by the plaintiff does not amount to giving up or abandonment of its right in the patent itself. It only means that the defendant has overlooked the infringement being done by the plaintiff or has acquiesced in the infringement being done by the plaintiff in that country however, the right of the defendant in the patented article, patented invention does not come to an end.
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6. I consider that the present application made by the plaintiff under Order 39 Rule 1&2 CPC is a gross misuse of the judicial process. The application is liable to be dismissed with exemplary costs and is hereby dismissed with costs of Rs.1,00,000/-
CS(OS) No. 753/2009 List on 15th January, 2010.
November 11, 2009 SHIV NARAYAN DHINGRA, J.
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