Franz Zaver Huemer vs New Yesh Engineers
1995 Latest Caselaw 951 Del

JUDGMENT

R.C. Lahoti, J.

1. This order proposes to dispose of an application under Order 39 Rules 1-2 CPC seeking grant of ad interim injunction in a suit complaining of infringement of patent.

2. The plaintiff is an Austrian citizen. The suit has been filed through one Mr Raj Kumar Lohiya, a constituted attorney of the plaintiff, so appointed under deed of appointment dated 28.2.1994. The suit accompanied by an application for the grant of ad interim injunction has been filed on 26.2.1994.

3. According to the plaintiff he is an inventor of international fame and in India he is registered proprietor of the following patent registrations :

Regd. No. Date Title

162520 31.7.85 invention for improvement in or relating to winding equipment for winding yarn.

162589 7.6.85 driving arrangement on a circular loom

162369 7.6.85 circular loom

16359 15.3.84 arrangement for tension control supervision of individual warp threads on a loom, particularly a circular loom.

163095 17.7.84 circular loom.

4. The above said patents are valid and subsisting. The Journal Plasma News, February 1994, brought to the notice of the plaintiff that the defendants were claiming to manufacture and sell "Four Shuttle High Speed Circular Loom" and "higher line speed magnet type C.W". The plaintiff suspecting on the advertised equipment infringing his patent had the defendant's equipment inspected in the process of its display by the defendant at a stall in the ongoing exhibition PLAS-TINDIA 1994 at Pragti Maidan New Delhi. The plaintiff found the loom and binding mechanism of the defendant's machine infringing the plaintiff's patent.

5. Vide para 5 to 14 of the plaint the plaintiff has given a detailed narration of the plaintiff's patent and the defendant's machine to show how and in what manner the defendant's machine is infringing the plaintiff's patents. The plaintiff has filed the suit seeking a permanent injunction and accounts. An application for the grant of ad interim injunction has also been filed.

6. On being noticed, the defendant has filed a short reply. The gist of the pleas taken by the defendant may be summed up as under.

6.1 The plaintiff is not entitled to the grant of an injunction inasmuch as the suit is mischievous, malicious and filed with malafide intention. The plaintiff has nowhere alleged that he was commercially exploiting his patents in this country. Mr Raj Kumar Lohiya is the Managing Director of Lohiya Starlinger Ltd who has projected the plaintiff to file the suit. Lohiya Starlinger is producing circular looms and is also participating in PLASTINDIA exhibition at Pragti Maidan New Delhi held between 20th February,94 and 4th March, 1994. The defendant's display of machines attracted more visitors and more business enquiries then that of Lohiya Machines. Business rivalry and malice have prompted Lohiya in putting forth the plaintiff to file the present suit. There may be some undisclosed arrangement between the plaintiff and Raj Kumar Lohiya which has been suppressed from the court. The defendant has not made any use of or infringed the plaintiff's patents. The defendant is a small entrepreneur technically experienced in the line of textile industries since 1969. He has developed his own machine after a couple of years' labour. The machine is lower in cost, has minimum wear and tear and low cost of maintenance, simplified mechanism, electrically controlled system, low consumption of energy, low operating cost and higher output as compared to those of Lohiya machines. In times of acute power crisis the defendant's machine without any foreign collaboration or tie-up has given meritorious performance. The idea behind the filling the suit is to throw out small manufacturer.

6.2 The plaintiff's suit is also barred on account of delay and laches and acquiescence, as the technological use of the defendant's machine has been in vogue in India for two decades or more. The defendants machines have been advertised in journals for the last one year. The plaintiff is not an inventor of the patented device as the device is already being used in machines for several years in several countries especially in India.

6.3 Vide para 9 to 16 of the affidavit, the defendant has set out several details of the machines already being manufactured for over one and a half decade leading to an inference that there was nothing new in the plaintiff's device. At the most the already device can amount to arrangement or rearrangement of the already known device which does not amount to an invention. As sufficient grounds exist for revocation of the plaintiff's patent, the defendant has a very good defense to the plaintiff's suit.

7. Documents have been filed by the defendant in support of several pleas set out in his affidavit. On 1.3.94 this Court has directed an ex parte ad interim injunction to issue restraining the defendant from in any manner infringing the plaintiff's patent. An advocate commissioner was appointed to go to PLASTINDIA exhibition accompanied by the plaintiff or his representative and to give a report regarding the goods exhibited by the defendant. The report of the Local Commissioner shows there was no reluctance on the part of the defendant and he cooperated with the Commissioner by readily demonstrating the machine to him

and by permitting him to take several photographs thereof.

8. Plaint and the application for ad interim injunction and the affidavit filed in support thereof are conspicuously silent particularly about commercial exploitation by the plaintiff of his patents. In General Tire and Rubber Co v. Firestone Tire & Rubber Co Ltd 1972 RFC 457, 486 it has been held :-

" A signpost however clear, upon the road to the patentees invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee."

9. The plaint and the application are conspicuously silent on the understanding or arrangement between the plaintiff and Raj Kumar Lohiya the constituted attorney who has filed the suit and is conducting the same. The allegation that Raj Kumar Lohiya is the Managing Director of an industrial unit having business rivalry with the defendant has not been controverted and this fact has been concealed by the plaintiff and Raj Kumar Lohiya while filing the suit and the application. Nothing has been brought on record to suggest if Raj Kumar Lohiya is an exclusive licensee of the plaintiff. Power of attorney in favor of Raj Kumar Lohia is dated two days after the filing of the suit.

10. The defendant's machine has been advertised in magazines since the year 1992. It is difficult to believe that Raj Kumar Lohiya and for that matter the plaintiff would have got knowledge of the defendant's machine for the first time in February, 1994 only when the defendant's machine was exhibited at the exhibition held in Delhi.

11. The defendant has contended that the plaintiff's patent is an invalid patent and the same is liable to be revoked on the grounds available under Section 64 of the Patent's Act 1970. Learned counsel for the plaintiff has submitted that the patent unless revoked remains valid and an action for infringement lies. In other words it is submitted by the learned counsel for the plaintiff that so long as the patent once granted is not revoked, the defense of liability or susceptibility of the plaintiff's patent for revocation cannot be a defense. However, I am not impressed. Section 107 of the Patents Act clearly provides that in any suit for injunction every ground on which it may be revoked shall be available as a ground for defense.

12. It is well settled that to be entitled to the grant of an ad interim injunction the plaintiff as to show existence of a prima facie case, balance of convenience in his favor and an irreparable injury. Apart from these, the conduct of the parties has also to be kept in view. From what has been stated hereinabove, I am clearly of the opinion that the plaintiff is not entitled to the grant of the injunction as prayed for.

13. For the foregoing reasons the plaintiff's application under Order 39 Rules 1-2 CPC 9 LA. 2233/94) is rejected. The ex parte interim order dated 1.3.1994 is vacated.