Delhi High Court
M/S. National Research ... vs Ineos Abs Ltd. on 3 May, 2012
Author: Pradeep Nandrajog
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : May 03, 2012
+ RFA(OS)73/2009
M/S. NATIONAL RESEARCH DEVELOPMENT CORP.
..... Appellant
Represented by: Mr.Dilip Kumar Jha, Advocate
versus
INEOS ABS LTD. ..... Respondent
Represented by:Mr.N.Safaya, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
PRADEEP NANDRAJOG, J.(Oral)
1. Appellant‟s suit seeking decree in sum of
`25,34,964.62 stated to be the royalty due under an
agreement dated July 23, 1975 has been dismissed by the
learned Single Judge, holding that the claim, being based upon
a patent must fail for the reason Section 68 of the Patents Act,
1970 mandated an assignment of a patent by way of a license
to be not only in writing but filed with the Controller of Patents
for being registered with him.
2. It is not in dispute that the license deed Ex.PW-1/3
upon which the suit has been filed was neither filed before the
Registrar of Patents and thus was not registered.
3. It is the case of the appellant that Ex.PW-1/3 does
not pertain to a patent but to a „know-how‟.
4. The learned Single Judge has noted that Clause 1 of
the deed in question itself refers to the grant being to use the
invention for the manufacture of ABS Resigns covered by
Indian Patent No.110090 and 118359. The learned Single
Judge has noted that the attempt was made to argue that a
process and a patent are different concepts and that it was the
case of the appellant that what was licensed was a process
and not a patent.
5. With reference to Ex.P-6, P-8, P-11, P-13, P-15, P-17,
P-19 and P-21, the learned Single Judge has found that the
contention urged was meritless.
6. Suffice would it be to state that learned counsel for
the appellant has not been able to show to us from Ex.PW-1/3,
a reference made to a process. If the grant was for a process,
the same would have found a mention in Ex.PW-1/3. The
document, does make a reference in the recital that the
appellant has agreed to grant to the respondent the use of its
invention and the process, but the operative part does not
refer to any process. The grant is to use the invention
patented by the appellant as per Indian Patent No.110090 and
118359.
7. That apart, the finding of the learned Single Judge
in para 11 of the impugned decision has not even been
attacked. The finding is as under:-
"Considering from another angle, the patent
number 118359 was registered in the name of
Council for Scientific Industrial Research with effect
from 31st October 1968. The defendant has placed
on record the copy of the registration of this patent
from the office3 of Patent‟s office and the same is
Ex.DW1/1. The patent expired on 31st October
1979 as per the register after eleven years of its
registration. The entry of registration was made on
3rd January 1974 after processing the application
made by CSIR in 1968. Similarly, the patent in
respect of number 110090 was registered with
effect from 5th April 1967 and it was closed on 2nd
May 1981 as per the register. There is no dispute
about the authenticity of these documents. The
patents and copyrights are granted for a limited
period to the authors so that authors can take
exclusive benefit of the inventions and copyright for
that period. After the limited period for which the
patent is granted, the patent and the copyright
material becomes public property and can be used
by anyone. I, therefore, consider that the claim of
the plaintiff based on a license would not lie after
the date of expiry of patent. Even if the plaintiff
had granted a valid license to the defendant in
respect of a patent which had become public
property the license would not be binding on the
plaintiff."
8. That apart, a license to use an invention is
equivalent to a license to make, use, exercise and vend the
invention and thus confers the fullest right to the licensee.
9. We concur with the view taken by the learned
Single Judge and thus dismiss the appeal but refrain from
imposing cost.
(PRADEEP NANDRAJOG)
JUDGE
(SIDDHARTH MRIDUL)
JUDGE
MAY 03, 2012
KA
