* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: October 09, 2009
Date of Order: November 12, 2009
+IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008
% 12.11.2009
ASIAN ELECTRONICS LTD. ..... Plaintiff
Through: Mr. Shekhar Gupta, proxy counsel
Mr. Gaurav Barathi, Adv.
versus
JUMBO ELECTRIC COMPANY ..... Defendant
Through: Ms. Deepika Marwaha with
Ms. Themthingla, Advs.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
ORDER
1. The plaintiff had filed this suit for permanent injunction to restrain the defendant from infringement of plaintiff's patent no.193488 in respect of "conversion kit to change fluorescent lighting units inductive operation to electronic operation". The plaintiff has also prayed for issue of an injunction against the defendant restraining defendant from manufacturing, selling, distributing conversion kit embodying the plaintiff's registered patent and from infringing plaintiff's copyright in industrial drawings in respect of lighting unit and conversion kit and sought an order for delivery up for destruction of all lighting units and conversion kits, dies, labels, printed materials such as brochures, etc. and to render accounts.
IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 1 of 8
2. The plaintiff had moved an application for interim injunction. An ex parte interim injunction was granted in favour of the plaintiff restraining defendant from manufacturing, selling, distributing the lighting system or conversion kit embodying plaintiff's registered patent. The local commissioner was also appointed by the Court to prepare inventory of goods. Thereafter defendant moved an application under Order 39 Rule 4 CPC for vacation of the injunction.
3. A perusal of the plaint of the plaintiff would show that the plaintiff has claimed that it got a patent no.193488 registered in respect of a conversion kit fitted with holders/pin for fluorescent lighting units with electronic blast circuit. In the body of the plaint, plaintiff had explained what its invention means and had also given the claim plaintiff lodged with the patent office. The plaintiff submitted that it also got its invention registered with US Patent office vide no. 6100638 and had made application with Europe, Korea and Canada. It is stated by the plaintiff that the defendant was manufacturing and selling the identical conversion kits for lighting units with electronic blast operation embodying claims of the plaintiff's patent and such a conversion unit was purchased by the plaintiff (manufactured by the defendant) from an electrical shop in Delhi. It is stated that this unit was a copy of plaintiff's patented product and embodied the patented product of the plaintiff. Plaintiff had not granted a license to the defendant for the use of the said patent and therefore manufacturing of lighting units and conversion kits by the defendant was unauthorized and illegal and amounted to infringement of plaintiff patent rights. IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 2 of 8
4. In order to consider the claim of the plaintiff and if there was an infringement of patent of the plaintiff by the defendant it is to be understood as to what is the invention claimed by the plaintiff.
5. In the field of electric appliances and lighting units efforts are being made by industry to produce such appliances and lighting system which are more energy efficient and this effort is being made by different companies and individuals. The conventional tube light being used in offices and homes earlier was technically described as T12. This tube light has dimensions in FPS system and its wattage is normally 36 to 40. In order to produce a spark between the two ends of fluorescent tube an electro-magnetic ballast used to be employed through a device which is normally known as "choke" and a starter is used to initiate the ballast. This fluorescent tube was considered to be more energy consuming because of the length of the tube and the length of the spark to be produced and because of the electro-magnetic device producing ballasts. Instead of this tube of T12 standard, a sleeker and shorter length tube known as T5 was introduced and instead of a device creating electric-magnetic ballast, an electronic devise to create electronic ballast was invented. These two inventions namely sleek tube T5 and invention of electronic device to create electronic ballast do not go to the credit of the plaintiff. The plaintiff has not invented either T5 tube or the electronic ballast device. What is claimed is that T5 tube, being shorter in length, could not be fitted in the existing fitting of T12. If one wanted to use T5 tube one had to change the fitting and if one wanted to use electronic device instead of electro-magnetic ballast one had to replace the choke IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 3 of 8 with electronic ballast. The plaintiff claimed that it developed a conversion kit with two pin unit fitted on both sides and the electronic ballast fitted either on one side or within the wiring on the strip so that in the existing fitting of T12, this new fitting with adopter on both sides could be plugged in and a T5 tube could be fitted into the conversion kit with the result that on the existing T12 fitting one could use T5 tube with electronic ballast. Claim no.1 as given in para 10 of the plaint about the invention makes it abundantly clear that the conversion kit developed by the plaintiff was to the above effect. Para 10 of the plaint is as follows:
"Claim 1:
Conversion kit to change the fluorescent lighting units from inductive operation to electronic operation, comprising, a pair of sleeve-like adaptors which are adapted to be mounted at the ends of a straight T5 fluorescent lighting tube of shortened length, and a wiring assembly for electrically connecting the adapters, the structural components forming the electronic ballast being mounted in one or both of the adapters, or being mounted in the wiring assembly."
6. However, perusal of para 11 of suit shows that the plaintiff also made a deceptively wrong claim in the plaint when it claimed that Mr. Shah developed a new fluorescent lamp. The claim reads as under:
"Mr. Shah not only developed a new fluorescent lamp but also achieved the advantage of providing lamps that do not flicker, that are long-lasting and consume less electricity. These lamps are energy efficient since they consume 35% less energy and can be easily fitted into the current systems without any further rewiring."
7. So-called invention of plaintiff did not have any of the attributes as mentioned in para 11. Neither Mr. Shah had developed a new fluorescent lamp nor he had developed any device of energy IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 4 of 8 saving. What Mr. Shah had done was to assemble already existing devices into a conversion kit so that the tube T5 could be used in existing fittings of T12.
8. The defendant is also marketing a conversion kit which allows a person having fitting of T12 to use a tube of T5 and to use electronic ballast instead of electro-magnetic ballast. The question which arises is whether the defendant is guilty of infringement of the patent of the plaintiff.
9. Merely by deceptively worded pleadings one cannot achieve the object of stopping another from producing a product which is not violative of plaintiff's patent. In order to show that the defendant has violated the plaintiff's product, the plaintiff was supposed to give analysis of its patent and show that the invention claimed by it involved some technical/scientific advance as compared to the existing knowledge and it was not obvious to a person having skill and knowledge in electronic and electrical field.
10. Adopters are known to the technical word from time immemorial. The electric voltage used in USA and some other European countries for domestic purpose is 120 volts while the voltage being used in India and some other Asian countries is 240 volts. All such electrical appliances manufactured in USA and some other countries are based on 120 volts system. All such domestic appliances which work on 120 volts are used in India and other countries with the help of adopters. The adopters are also otherwise used because of different nature of electrical fittings used in Europe and in India. The adopters are used not only in the field of electric fittings but are used in mechanical and electronic fittings. IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 5 of 8 Thus, use of adopters and conversion kits is neither a new idea nor is something unknown to the public. Any person having technical knowledge of electrical engineering/electronic engineering can create adopters so that, the electronic gadgets or devices being used in one country can also be used in other countries. Creating of an adopter (conversion device) is not an IPR offence unless it involves copying of a unique electronic circuit invented by someone. If the plaintiff had to establish a case that its patent had been violated then plaintiff was supposed to specify those innovative steps which were created by the plaintiff which could not have been conceived by a person having skill and technical knowledge of the trade but had been copied from patent of plaintiff. The plaintiff has not specified such violation by the defendant. There is no bar in using existing inventions by other persons, so there could be no bar on using T5 tube or electronic ballast by the defendant or any other person. If the circuit of the electronic ballast device as invented by the plaintiff had been copied by the defendant, the plaintiff could have been justified in complaining of violation of a patented product. But it is not the case of the plaintiff that he even invented an electronic ballast circuit or it had a patent of the electronic ballast circuit. Connecting two wires to the electronic ballast device which go to the pins of the strip where tube is fitted, does not amount to an invention or innovative steps. Any person having a little knowledge of electrical can do this. Moreover, if a patent of a device is registered it does not bar development of alternative devices and substitute technologies nor it shut out others from using existing inventions which have been used by the plaintiff, for IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 6 of 8 creating another conversion device. The plaintiff has no monopoly either over the electronic ballast or over T5 tube. Plaintiff had come out with a conversion kit. The defendant had also come out with a conversion kit. Merely because defendant had come out with a conversion kit does not mean that the defendant has copied the invention of the plaintiff.
11. The plaintiff has also failed to show how the defendant has copied the invention of the plaintiff. The plaintiff has not presented the circuit which was invented by the plaintiff for its conversion device. The word retrofit is being used in the market by several other players and retrofit cannot be a trade mark or monopoly of the plaintiff. A perusal of documents filed by the defendant would show that such conversion devices were being commonly used in the market. The defendant has placed on record the catalogue and literature of company CH Lighting which has been marketing and selling conversion devices. The plaintiff has also placed on record that there was an already existing patent of retrofit of Metric Lamp to existing fluorescent lighting fixture in favour of Schmidt, Peter, Michael and Norris, Roger Erle since April, 2004. Senergy Solutions was also marketing conversion kits. Morning star Light, Jain industrial lighting corporation, Raj Electricals, Myna Electronics Ltd., Light India all were supplying conversion devices.
12. I consider that by getting a patent in respect of a conversion kit (retrofit) created by the plaintiff, the plaintiff does not get monopoly that nobody else can produce conversion devices so that T5 tube can be used in existing T12 fittings either coupled with IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 7 of 8 electronic ballast or without electronic ballast. I find no force in the injunction application. The application is hereby dismissed. Consequentially, the ex parte injunction granted by this Court vide order dated 16th July, 2008 stands vacated and application (IA No. 10574/2008) under Order 39 Rule 4 CPC is allowed.
13. The views expressed hereinabove are only prima facie and shall not affect the merits of the case.
CS(OS) No. 1177/2008 List before the Joint Registrar on 16th February, 2010 for admission/denial of the documents.
November 12, 2009 SHIV NARAYAN DHINGRA J.
ak
IA Nos. 7337/08 & 10574/08 in CS(OS) 1177/2008 Page 8 of 8