IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 OS.No. 1 of 2000(A) ---------------- PLAINTIFF: --------- MATHEW V. MATHEW, AGED 54 YEARS, S/O. MATHAI, VEENAMALIL HOUSE, KEEZHILLAM, MANAGING PARTNER, M/S. P.K.V. GROUP INDUSTRIES, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, ERNAKULAM DISTRICT BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM DEFENDANTS: -------------- 1. M/S. PREMIER ENTERPRISES, MAIKAD – 683589 ANGAMALY, A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER, SHRI MARTIN DAVIS 2. SHRI MARTIN DAVIS, AGED ABOUT 30 YEARS, MANAGING PARTNER, M/S. PREMIER ENTERPRISES, MAIKAD, ANGAMALY ADV. SRI.N.RAMDAS FOR D1 AND D2 This suit coming on for final hearing on this the 8th day of June 2009 in the presence of Adv. Sri. N.J. Mathews for the plaintiff and the defendants set ex parte and having stood over for consideration to this day, the Court delivered the following: APPENDIX EXTS: FOR THE PLAINTIFF A1 - 25-4-1998 - Notification in the Gazette of India Part III, Sec. 2 A2- 8-7-1998 : Notice of acceptance of complete specification from the controller of patent. A3 - 16-4-1999 – Sealing of Patent Certificate bearing No. 181142 A4 - 15-5-1999 - Copy of Gazette publication A5 - 17-8-1999 – Malayala Manorama daily A6 - Brochure of “Stoman” Stove A7 - Brochure of Mr. Cook Stove, manufactured by the defendants EXTS. FOR THE DEFENDANTS NIL WITNESSES FOR THE PLAINTIFF: NIL WITNESSES FOR THE DEFENDANTS: NIL COURT EXHIBITS C1- Report dated 21-10-1999 C1(a) Rough sketch of Premier Enterprises C1(b) Owner's Mannual of “Mr.Cook” Kero Gas Stove V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * O.S. NO. 1 of 2000 * * * * * * * * * * * * * * * * * * Dated: 8th day of June, 2009 JUDGMENT This is a suit for perpetual injunction restraining the defendants from using, manufacturing, selling or distributing the plaintiff's patented invention in the plaint schedule kerosene stove and for directing the defendants to bring before court the accounts of the defendants with regard to the marketing and selling of kerosene stoves under the name and style of “Mr. Cook Kero Gas Stove”. 2. The plaint averments can be summarised as follows:- The plaintiff is the patentee in respect of the plaint schedule Kerosene Stove with gravity fed fuel tank having cylindrical wick. The plaintiff's product has been entered in the Register of Patents recognising the plaintiff as the grantee and proprietor of patent No. 181142. By virtue of the said patent , the plaintiff has exclusive privilege of making, using, exercising, selling or distributing the kerosene stove with gravity fed fuel tank having cylindrical wick. The date of sealing of the plaintiff's patent work was on 16-4-1999 with a validity period for a term of 14 years from 21-5-1993. The plaintiff is the first inventor of the design which is an invention within the meaning of Sec. 2 (j) of the O.S.NO. 1 of 2000 -:2:- Patents Act, 1970. The complete specifications filed by the plaintiff before the Controller of Patent on 21-5-1993 was accepted and the patent was sealed on 16-4- 1999. The application of the plaintiff was not opposed by any person on any of the grounds mentioned under Sec. 25 of the Patents Act. Under Sec. 46 of the Patents Act the patent so granted to the plaintiff is effective throughout India and the plaintiff has all the rights of a patentee as enumerated under Sec. 48 of the said Act. By virtue of the said registration, the plaintiff has exclusive right by himself or by his agents or his licensees to make, use or exercise, sell or distribute the invention namely Kerosene Stove with Gravity fed Fuel Tank having Cylindrical wick throughout the territory of India. The invention of the plaintiff as born out by the patent is a Kerosene Stove with gravity fed fuel Tank and cylindrical wick comprising a fuel regulating valve fitted at the bottom of the tank wherein a hole is provided . The fuel regulating valve consists of a stopper fastened on a pin that is fixed on the tank with the help of a metallic clamp. A spring is kept in between the metallic clamp and the stopper at the bottom of the fuel tank with fuel regulating valve. A kerosene tray is fitted and the same is connected with a fuel fit tube which is connected with burners having cylindrical wick made of an asbestos sheet covered with brass mesh. The plaintiff has been marketing the plaint schedule kerosene stoves under the name “Stoman” even on the O.S.NO. 1 of 2000 -:3:- date of his application, that is, on 29-1-1993. The plaintiff was marketing his patented article through his firm known as P.K.V. Group of Industries. The present suit is confined to infringement committed after 25-4-1998 which is the date of advertisement of the acceptance of the complete specifications as envisaged by Sections 24 and 45 (3) of the Patents Act, 1970. The plaintiff has been marketing the plaintiff's article for several years without any dispute. No person has filed any objection before the statutory authority in the matter of grant of patent to the plaintiff. The stoves manufactured and marketed by the plaintiff had evoked enormous response in the market. The plaintiff noticed an advertisement in the Malayala Manorama Daily dated 17-8- 1999 to the effect that the defendants were manufacturing Kero Gas Stove and marketing the same through Anne Marketing, Angamaly, Ernakulam District. On enquiry by the plaintiff he has come to know that the manufacturing and marketing of Kero Gas Stove by the defendants constitute infringement of the patent of the plaintiff since the same specification invented by the plaintiff has been adopted and made use of by the defendants. The conventional kerosene stove employs the pressure technology by either pumping the fuel or keeping the fuel tank at a high level than the stove. Those models were found to frequently cause explosions due to variation in pressure. It was to safeguard against such danger that the plaintiff worked on the same and at O.S.NO. 1 of 2000 -:4:- last succeeded in inventing Kerosene Gas Stoves of the model described in the plaint schedule. By publication in the Gazette, the plaintiff has made public the claim of the plaintiff in relation to the patented article so that other persons will not infringe the plaintiff's product. The defendants who have no manner of authority to copy the invention of the plaintiff are bound to refrain from manufacturing and marketing kerosene stoves covered by the plaintiff's patent. The exclusive right to manufacture and sell the said invention rests with the plaintiff. The plaintiff is manufacturing and marketing the patented article all over the country. He is having the reputation as the inventor of the patented article. Plaintiff's patent is valid up to the year 2007. It is reliably understood that the defendants are infringing the patent rights of the plaintiff by manufacturing and marketing stoves which constitutes a colourable imitation of the plaintiff's design. Hence, the suit. 3. The suit was originally instituted as O.S. No. 1/99 before the Addl. District court, North Paravur on 24-9-1999. The defendants entered appearance and filed a joint written statement contending inter alia as follows:- The suit is not maintainable either in law or on facts. It has been filed without any bona fides. The suit ought to have been filed before the District Court, Ernakulam. The claim made by the plaintiff in the complete specifications in patent No. O.S.NO. 1 of 2000 -:5:- 181142 and sealed on 16-4-1999 is unsustainable. The design claimed by the plaintiff is not a patentable design and is liable to the revoked. The plaintiff does not have the exclusive privilege in making, using, exercising or distributing “Kerosene Stoves with gravity fed fuel tank and cylindrical wick” as described in the plaint schedule. The alleged invention as disclosed in the plaint does not have any novelty and it is not an “invention” within the meaning of the Patents Act, 1970. The plaintiff's work is not, therefore, patentable. The description of the alleged invention is vague and superficial. The plaintiff has obtained a patent for the plaint schedule kerosene gas stove by playing fraud on the patents office . Kerosene Stoves with gravity fed fuel tank and cylindrical wick were devices which had been manufactured by various industrial units in India for more than 5 decades. The principle behind the making of the stove was well- known in the public domain for a long time. The Indian Standards Institute had on 24-6-1986 adopted the Indian Standard for the manufacture of “gravity fed Kerosene wick stove” after the draft was finalised by the Oil Burning Appliances (Non-Pressure Type) Sectional Committee which had been approved by the Consumer Produces and Medical Instruments Division Council. The principle behind the gravity fed wick Stove is that Kerosene flows to a cylindrical wick due to the marginal gravity head of the Kerosene placed on an offset O.S.NO. 1 of 2000 -:6:- container. Indian Standard Institute published the specifications for gravity fed kerosene stoves in the form of a book (IS:11760 – 1986) and had made it available to the public in March, 1987. This specification and claim of the plaintiff's patent and the making of stoves is nothing but a colourable imitation of the I.S.I. specifications for such kerosene stoves manufactured and marketed by various Industrial units in India for a long time. The plaint averment that the plaintiff is an inventor and the Stoves manufactured by him would constitute an invention within the meaning of Sec. 2 (j) of the Patents Act, 1970 is false and hence denied. Long before the plaintiff submitted the complete specification of his alleged invention, gravity fed kerosene stoves with cylindrical wick had been manufactured and marketed by various Industrial Units in India. The Micro Hot Point stove is a kerosene stove with gravity fed fuel and cylindrical wick and it has been reigning the market from the year 1987 onwards. The scientific principle and technical know-how of such kerosene stoves had been published long before the date of the alleged invention by the plaintiff. Seven Star Metal Industries, Vaduthala, Kochi had been manufacturing and marketing kerosene stoves with gravity fed fuel tank with cylindrical wick from the year 1988 onwards in the name and style of “Stoman.” This is a fact well-known to the public even on the date of the plaintiff's patent. The plaintiff who is not an inventor of the process is not entitled O.S.NO. 1 of 2000 -:7:- to a patent for the plaint schedule article. The sealing of the patent will not in any way guarantee the validity of the patent. There cannot be any presumption as to the exclusive right of the plaintiff. The claim of the plaintiff regarding the patent is vague, insufficient and improper. It does not satisfy the definition of an invention within the meaning of the Act. The patent of the plaintiff is not an invention which is patentable. It is a slavish imitation of the gravity fed kerosene stoves which were in public use on the date of patent. When Seven Star Metal Industries, Vaduthala, Kochi -23 has been manufacturing and marketing stoves under the name of “Stoman” from the year 1988 onwards, the claim of the plaintiff that he has been marketing the aforementioned stoves under the name “Stoman” cannot be entertained. The case of the plaintiff that nobody has opposed his patent is not true. Seeing the news item regarding the plaintiff's patent the Kerala Small Scale Stove Manufacturers Association had filed an application before the Controller General of Patents for revoking the plaintiff's patent which was wrongly granted to him. The plaint averment that the stoves manufactured and marketed by the plaintiff have received enormous response in the market is false and exaggerated. “Mr.Cook” stoves manufactured by these defendants enjoy a wider market and larger customer response than the stoves of the plaintiff. The manufacture and sale of Kero-Gas stoves by these defendants do O.S.NO. 1 of 2000 -:8:- not amount to infringement of the plaintiff's patent in any manner whatsoever. These defendants have been manufacturing gravity fed kerosene wick stoves for many years and the words “Kero-Gas Stove” do not constitute an imitation of the plaintiffs patented article. The claim of the plaintiff that the plaint schedule kerosene stove is a novelty and a departure from the ordinary pressure kerosene stoves is false. It is not correct to say that the plaintiff is the first person who succeeded in the invention relating to kerosene stoves as described. The plaint averment that the kerosene stoves marketed by the plaintiff have adequate distinctiveness is not correct. The plaintiff cannot claim any inventive right over the plaint schedule kerosene stove in view of the prior publication and knowledge of the kerosene gas stoves. The plaintiff is an imposter who obtained patent by playing fraud on the Patent Office by a colourable imitation of a device which was already in the public domain. These defendants have not infringed nor have they any intention to infringe the patent which itself is to be liable to be revoked. The first defendants is the manufacturer of gravity fed kerosene wick stoves. He is manufacturing the same under the name and style Mr. Cook. The products of these defendants have achieved great reputation and credibility in the market. The method used by these defendants in the manufacture of gravity fed kerosene wick stoves has been well-known and has been openly and without O.S.NO. 1 of 2000 -:9:- demur used in the commercial field all over the country for the past several decades before the plaintiff was granted the patent. The plaintiffs patent does not involve any novelty, ingenuity or inventive ability. The specification and claim covered by the plaintiff's patent is not an “invention” within the meaning of the Patent's Act, 1970 and he has no manner of right to claim himself to be the inventor of the kerosene stoves covered by the patent No. 18114. It was by suppressing material facts that the plaintiff managed to obtain a patent for kerosene stoves. This defendants has every right to get a decree revoking the patent granted to the plaintiff. The counter claim may be disposed of declaring that the patent obtained by the plaintiff stands revoked under Sec. 64 of the Patents Act, 1970, and restraining the plaintiff from manufacturing and marketing kerosene stove with a design identical with or deceptively similar to Ext.A1 design and a perpetual injunction restraining the plaintiff from manufacturing and marketing kerosene stove as described in the plaint schedule and also allowing the defendants to realise the costs. 4. In view of the counter claim raised in the written statement seeking revocation of the plaintiffs patent, the suit along with the counter claim was transfered to this Court as per order dated 7-12-1999 as provided under the proviso to Sec. 104 of the Patents Act. After transfer to this Court, the case was being O.S.NO. 1 of 2000 -:10:- posted for settlement of issues. Eventhough the case stood posted to 21-6-2007 for settling the issues, no order framing issues appears to have been passed on that day. However, the case was posted for trial on that day. Noticing the absence of an order framing issues in the suit as well as the counter claim, this Court framed issues both in the suit as well as in the counter claim as follows:- O.S. 1 of 2000 1. Does not the plaintiff have the exclusive right to make, use, exercise, sell or distribute the plaint schedule kerosene stove ? 2) Whether the defendants or anybody else has got any exclusive right to manufacture and sell kerosene stoves as described in the plaint schedule for which patent has been obtained by the plaintiff ? 3) Whether there has been prior user by other manufacturers of the method covered by the plaintiff's patent ? 4) Whether the plaintiff has managed to obtain the patent in respect of the plaint schedule kerosene stove suppressing the existence, if any, of prior knowledge and user of the method covered by the plaintiff's patent ? 5) Was the patent obtained by the plaintiff in respect of the plaint schedule kerosene stove by playing fraud on the patent office ? O.S.NO. 1 of 2000 -:11:- 6) Whether the plaintiff is having exclusive right to manufacture and sell kerosene stoves identical to the plaint schedule kerosene stove on the strength of the patent obtained by him ? 7. Whether the defendants has infringed the patent right of the plaintiff over the plaint schedule kerosene stove ? 8. Whether the plaintiff is entitled to get an account of profits from the defendants ? 9. Whether the plaintiff is entitled to a decree for injunction as prayed for ? 10. Whether the plaintiff has got a cause of action against the defendants ? 11. What all reliefs the plaintiff is entitled to ? 12. Reliefs and costs in the suit ? Counter-claim in O.S. No. 1 of 2000 1. Whether the defendants or anybody else has got any exclusive right to manufacture and sell kerosene stoves as described in the plaint schedule for which patent has been obtained by the plaintiff ? O.S.NO. 1 of 2000 -:12:- 2. Whether there has been prior user by other manufacturers of the method covered by the plaintiff's patent ? 3. Whether the counter claim by the defendatn is allowable ? 4. Whether the patent granted to the plaintiff in respect of the plaint schedule kerosene stove is liable to be revoked under Sec. 64 of the Patents Act, 1970 ? 5. Whether the defendants is entitled to the injunction prayed for by him in the counter claim ? 5. Since after the filing of the written statement the defendants remained absent, they were set ex-parte. During the subsequent postings of the case also, both the defendants as well as their counsel have choosen to remain absent. As the defendants were absent, this Court as per order passed today dismissed the counter-claim for default. Notwithstanding the fact that the defendants have remained ex parte the plaintiff will be entitled to a decree only on proof of the plaint allegations. The plaintiff has filed a proof affidavit re-iterating the averments in the plaint. The documents produced along with the plaint and referred to in the proof affidavit as Exts. P1 to P7 are marked as Exts.A1 to A7. The report submitted by the Advocate Commissioner deputed by the Addl. District court, North Paravur is marked as Ext.C1. O.S.NO. 1 of 2000 -:13:- Issues 1 to 12: For the sake of convenience, these issues can be considered together. 6. The suit was filed under Section 104 of the Patent Act, 1970 (hereinafter referred to as 'the Act' for short) seeking a perpetual injunction restraining the defendants from using, manufacturing, selling or distributing the plaintiff's invention in the patented article namely the plaint schedule kerosene gas stove with gravity fed fuel tank and cylindrical wick and directing the defendants to bring before Court the accounts of the defendants as regards marketing and selling of “Mr.Cook Kero - gas Stove. 7. The plaint schedule kerosene stove in respect of which the plaintiff has obtained Patent No.181142 dated 21.5.1993 sealed and granted to the plaintiff on 16.4.1999 by the Controller of Patents, Chennai is a stove with gravity fed fuel tank and cylindrical wick. Ext.A1 Gazzette Publication dated 25.4.98 gives a pictorial representation of the stove. It is a kerosene stove with gravity fed fuel tank and a cylindrical wick comprising a fuel regulating valve fitted at the bottom of the said tank wherein a hole is provided. The fuel regulating valve consists of a stopper fastened on a pin that is fixed on the tank with the help of a metallic clamp. A spring is kept between the metallic clamp and the stopper. A Kerosene tray is fitted at the bottom of the fuel tank with a fuel regulating valve and the tray is connected with a fuel feed tube which in turn is connected to a burner with O.S.NO. 1 of 2000 -:14:- cylindrical wick made of asbestos sheet covered with brass mesh. 8. It is the case of the plaintiff that the plaint schedule kerosene stove was finally invented by him as a fructification of his desire to invent a new technology which would avoid the usual and common explosions that occur in the case of ordinary pressure kerosene stoves which employ the pressure technology either by pumping kerosene or keeping the fuel tank at a higher level than the stove. It was to safeguard against the frequent explosions that the plaintiff worked on a design and at last succeeded in the invention in question. 9. For the purpose of deciding this case, provisions of the Patents Act, 1970 and the Patents Rules, 1972 as were applicable in the year 1999 when the plaintiffs patent was sealed and granted alone are relevant. 10. An application for a patent can be made by three categories of persons namely:- a) a person claiming to be the true and first inventor of the invention. b) an assignee of the true and 1 st inventor in respect of the right to make the application, or c) The legal representative of a deceased person who immediately before his death was entitled to apply. O.S.NO. 1 of 2000 -:15:- 11. A patent is in an exclusive right granted to a person who has invented a new and useful article or an improvement to an existing article or a new process of making an article. The exclusive right given is to manufacture the new article invented or to manufacture an article according to the invented process for a limited period. During the term of the patent the owner of the patent, that is, the patentee can prevent any other person from using the patented invention. After the expiry of the patent anybody can make use of the invention since the invention then becomes part of the public domain. 12. The expression patent has been defined under Section 2(n) of the Act as follows:- “Patent means a patent granted under this Act and includes for the purposes of Sections 44,49,50,51,52,54,55,56,57,58,63,65,66,68,69,70,78,134 ,140,153,154 and 156 and Chapter XVI, XVII & XVIII, a patent granted under the Indian Patent's and Designs Act, 1911(II of 1911).” The object of granting the patent is for the encouragement and development of a new technology and industry in the State. It is desirable in public interest that industrial techniques should be improved. In order to encourage improvement and also to O.S.NO. 1 of 2000 -:16:- encourage the disclosure of improvements in preference to their use in secret, any person devising an improvement in a manufactured article or in machinery or methods of making it, may upon disclosure of his improvement at the Patent Office demand to be given monopoly in the use of it for a period of 20 years (formerly it was 14 years). After that period, it passes into the public domain. The temporary monopoly given to the inventor is not objectionable because if it had not been for the inventor who designed and disclosed the improvement nobody would have been able to use the invention since no body would have known about it. Giving the monopoly to the inventor encourages the putting into practice of the invention. The only way the inventor can make a profit from it is by either himself using it and deriving an advantage over his competitors by its use or by allowing others to use it in return for royalties. 13. It is a fundamental principle of patent law that a patent monopoly is granted only for inventions which are new and useful and which have industrial application. The expression invention has been defined under Section 2(j) as follows:- “