IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 OS.No. 2 of 2000(A) ------------------- AGAINST THE ORDER IN IA.451/1999 IN OS.2/1999 of ADDL. DISTRICT COURT, PARAVUR .................... PLAINTIFF(S): ---------- 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 DEFENDANT(S): -------------- AJITH KUMAR, AGED ABOUT 35 YEARS, PROPRIETOR, M/S. HOME NEEDS, NELLADU P.O., -DO- KARA, MAZHUVANNUR VILLAGE, KUNNATHUNAD TALUK ADV. SRI.N.RAMDAS SRI.T.RAJESH FOR D1 AND D2 This suit coming on for final hearing on this the 9th day of June 2009 in the presence of Adv. Sri. N.J. Mathews for the plaintiff and the defendant set ex parte and having stood over for consideration to this the 17th day of June 2009, the court delivered the following:- APPENDIX EXTS. FOR THE PLAINTIFF A1 - 8-7-1998 : Notice of acceptance of complete specification from the controller of patent. A2 - 25-4-1998 - Notification in the Gazette of India Part III, Sec. 2 A3 - 16-4-1999 – Sealing of Patent Certificate bearing No. 181142 A4 - 15-5-1999 – Notification in the Gazette of India notifying the date of sealing of plaintiff's patent A5 - Nil- Operation Mannual of “ Stoman”G F K, Table Stove A6 - Nil- operating instructions of “Techman” Kerosene Stove A7 - 8-9-1999 - Publication of plaintiff's patent in Sayahna Kairali A8 - 23-29 August, 1999 – Publication of plaintiff's patent in Business Deepika A9 - 23-8-1998 – Advertisement of “Techman” Kero Gas Stove in the Malayala Manorama Sunday Suppliment. EXTS. FOR THE DEFENDANTS NIL WITNESSES FOR THE PLAINTIFF: NIL WITNESSES FOR THE DEFENDANTS: NIL V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * O.S.NO. 2 of 2000 * * * * * * * * * * * * * * * * * * Dated: 17th day of June, 2009 JUDGMENT This is a suit for perpetual injunction restraining the defendant from using, manufacturing, selling or distributing the plaintiff's patented invention in the plaint schedule kerosene stove and for directing the defendant to bring before court the accounts of the defendant with regard to the marketing and selling of kerosene stoves under the name and style of “Techman” 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 thereby 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. 2 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 consist s 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 date of his application, that is, on 29-1-1993. The plaintiff was O.S. 2 of 2000 -:3:- 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 distribute. 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. Of late, the plaintiff noticed that the defendant is manufacturing and marketing Kero gas stove in the name and style of “Techman” by advertisement in the Malayala Manorama Daily dated 23-8-1995. On enquiry, the plaintiff has come to know that the manufacturing and marketing of kerogas stove by the defendant constitutes infringement of the plaintiff's patent in as much as the same specification invented by the plaintiff has been adopted and made use of by the defendant. 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 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 O.S. 2 of 2000 -:4:- claim of the plaintiff in relation to the patented article so that other persons will not infringe the plaintiff's product. The defendant who has no manner of authority to copy the invention of the plaintiff is 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 defendant is 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. 2/99 before the Addl. District court, North Paravur on 26-10-1999. The defendant entered appearance and filed a written statement contending inter alia as follows:- The suit is not maintainable either in law 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. 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 O.S. 2 of 2000 -:5:- 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 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 O.S. 2 of 2000 -:6:- 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 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 O.S. 2 of 2000 -:7:- 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. “"Techman"” stoves manufactured by this defendant enjoy a wider market and larger customer response than the stoves of the plaintiff. The manufacture and sale of Kero-Gas stoves by this defendant do not amount to infringement of the plaintiff's patent in any manner whatsoever. This defendant has been manufacturing gravity fed kerosene wick stoves for many years and the words “Kero- Gas Stove” do not constitute an imitation of the plaintiff's 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 O.S. 2 of 2000 -:8:- 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. This defendant has not infringed nor has he any intention to infringe the patent which itself is liable to be revoked. This defendant is the manufacturer of gravity fed kerosene wick stoves. He is manufacturing the same under the name and style “Techman”. The products of this defendant have achieved great reputation and credibility in the market. The method used by this defendant in the manufacture of gravity fed kerosene wick stoves has been well-known and has been openly and without 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 O.S. 2 of 2000 -:9:- stoves. This defendant 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 this defendant 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 posted for settlement of issues. As per order dated 30-7-2008, this Court framed a common order setting the issues both in the suit as well as in the counter claim. Subsequently, separate orders settling the issues in the suit as well as counter-claim were passed. The issues as settled are as follows:- O.S. 2 of 2000 1) Whether the gravity fed kerosene wick stove manufactured and marketed by the defendant under the name and style of “Techman” is a colourable imitation of the plaint schedule O.S. 2 of 2000 -:10:- kerosene stove over which the plaintiff has obtained patent rights ? 2) Whether the defendant or anyone else has got any right to manufacture and sell kerosene stove with gravity fed fuel tank having cylindrical wick as described in the plaint schedule for which the plaintiff has obtained a patent ? 3) Whether the defendant has infringed the plaintiff's patent right over the plaint schedule kerosene stove ? 4) Whether the plaintiff is entitled to get an account of profits from the defendant ? 5) Whether the plaintiff is entitled to a decree for injunction as prayed for ? 6) Whether the plaintiff has got a cause of action against the defendant ? 7) Whether the defendant is having exclusive right to manufacture and sell kerosene stoves bearing a colourable imitation of the plaint schedule kerosene stove ? 8) Reliefs and costs ? O.S. 2 of 2000 -:11:- Counter-claim in O.S. No. 2 of 2000 1) Whether the counter claim as prayed by the defendant is allowable ? 2) 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 ? 3) Whether the injunction prayed for by the defendant is allowable ? 4) Reliefs and Costs ? 5. Since after the filing of the written statement the defendant remained absent, he was set ex-parte. During the subsequent postings of the case also, the defendant as well as his counsel have chosen to remain absent. As the defendant was absent, this Court as per order dated 8-6-2009 dismissed the counter-claim for default. Notwithstanding the fact that the defendant has 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 P9 are marked as Exts.A1 to A9. O.S. 2 of 2000 -:12:- Issues 1 to 8: 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 defendant from using, manufacturing, selling or distributing the plaintiff's invention in the patented article namely the plaint schedule kerosen gas stove with gravity fed fuel tank and cylindrical wick and directing the defendant to bring before Court the accounts of the defendant as regards marketing and selling of “"Techman" 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 25.4.1998 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. 2 of 2000 -:13:- 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. 2 of 2000 -:14:- 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 encourage the disclosure of improvements in preference to their use in secret, any person devising an improvement in a O.S. 2 of 2000 -:15:- 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:- “ invention means any new and useful (i) art, process method or manner of manufacture. (ii) machine apparatus or other article (iii) substance produced by inventor and includes any new and useful improvement of any of O.S. 2 of 2000 -:16:- them and an alleged invention” 14. The consideration for the grant of a patent is the disclosure of the invention in the specification which is open to public inspection so that on the expiry of the term of monopoly any member of the public can use the invention. The specification should, therefore, contain a full and sufficient description of the invention and the method by which it can be performed to enable a person skilled in the art to work the invention. Patent systems are not created in the interest of the inventor but in the interest of the national economy. 15. As has already been seen from the definition, a patent can be obtained only for