Delhi High Court
Aia Engineering Ltd. vs Magotteaux International S.A. & ... on 11 November, 2009
Author: Shiv Narayan Dhingra
* 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
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
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
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.
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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