Himachal Pradesh High Court
Sml Limited vs . Mohan & Company & Another on 24 July, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
SML Limited vs. Mohan & Company & another .
COMS No. 7 of 2023 24.07.2023 Present: Mr.Ashok Aggarwal, Senior Advocate, alongwith Dr.Sanjay Kumar, M/s Atul Jhingan and Priyansh Sharma, Advocates, for the plaintiff.
COMS No.7 of 2023 Dasti notice, returnable 08.08.2023, on taking steps by 25.07.2023, be issued to the defendants.
OMP No.324 of 2023
2. Notice in the aforesaid terms.
3. Claim of the applicant-plaintiff is that in pursuance to Patent Application No.663/MUM/2011, plaintiff-Company has been granted Indian Patent No.IN 282092 (in short 'suit patent') for manufacturing including fertilizer of the following granted composition:-
"11. A fertilizer composition sulphur in the range of 30% to 87% w/w of the total composition, zink oxide in the range of 3% to 25% w/w of the total composition and at least one agrochemically acceptable excipient, in the form of microgranules or broadcast granules wherein the particle size is in the range of o.1. microns to 50 microns.
12. The fertilizer composition of claim 11, wherein the composition is in the form of microgranules in the size range of 0.1. mm to 0.5 mm or broadcast granules in the size range of 0.75 mm to 5 mm."
4. It is case of the applicant-plaintiff that under Section 48 of the Indian Patent Act, and subject to other provisions contained under this Act, a Patent granted under this Act, shall confer an exclusive right upon the patentee to prevent third party who do not have its consent from the act of making, using, offering for sale, selling or importing such product in India and, therefore, applicant-plaintiff is entitled to file and maintain present suit against infringement of Indian Patent granted in its favour alongwith application for interim direction. ::: Downloaded on - 25/07/2023 20:39:25 :::CIS
5. Grievance of the applicant-plaintiff is that defendant .
No.2-Dharmaj Crop Guard Limited, is manufacturing the fertilizer composition having component of sulphur and zinc oxide falling in the range as granted to the applicant-plaintiff in aforesaid Patent, but are selling the same in the brand name of Zeeka Sulf mentioning composition of sulphur 65% min + zinc 18% min.
6. It has further been submitted that product
7.
r to manufactured by defendant No.2 is being sold by defendant No.1 being a dealer/distributor of defendant No.2.
It has also been submitted on behalf of the applicant- plaintiff that product Zeeka Sulf is being manufactured and sold by defendants having composition falling in the range of percentage of sulphur and zinc oxide covered under the Patent granted to the plaintiff.
8. It has further been submitted on behalf of the applicant-plaintiff that before filing present suit, applicant-plaintiff has undertaken an exercise to verify the facts by purchasing product of defendants being sold by them in the State of Himachal Pradesh, and the same was sent for chemical analysis to Government approved Laboratory for verifying its composition.
9. Vouchers of purchase of product of Zeeka Sulf by the applicant-plaintiff have also been placed on record alongwith documents.
10. On chemical analysis, it has been found that product Zeeka Sulf contained sulphur contents 67.7% and zinc oxide 22.8%. Report of PROMAS Research Laboratories Pvt. Ltd., in this regard, has also been placed on record alongwith documents filed with the plaint.
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11. Further, it has been submitted on behalf of the .
applicant-plaintiff that it has also referred reports of chemical analysis to an expert, namely, Dr.P.K. Patanjali, who remained Head Formulation Scientist at Institute of Pesticide Formulation Technology, for his opinion that as to whether Zeeka Sulf is within the scope of claims of Indian Patent No.IN 282092 or not.
12. After taking into consideration chemical analysis report of the Laboratory, percentage of composition of sulphur and zinc oxide content in Zeeka Sulf, it has been opined by the expert that essential features of fertilizer component covered under Indian Patent No. IN 282092 are present in Zeeka Sulf, and, therefore, falls within the scope of Indian Patent No. IN 282092. Copy of affidavit of the expert has also been placed on record alongwith documents.
13. Applicant-plaintiff has also placed on record photographs of packing of Zeeka Sulf product of defendants, whereon composition of sulphur and zinc has been mentioned as 65% and 18% respectively.
14. It is further case of the applicant-plaintiff that application for Patent was filed in the year 2011, but Patent was granted in the year 2017 and after 2017 till date, applicant- plaintiff is selling the product which has ascending trend in sales indicating huge commercial benefit to the applicant-plaintiff and in case defendants are permitted to continue with infringement, irreparable loss shall be caused to the applicant-plaintiff.
15. A table indicting the increase in the sales of the product of the applicant-plaintiff covered under Indian Patent Act, has also been placed on record.
16. It has further been submitted on behalf of the applicant-plaintiff that applicant-plaintiff has also faced pre-grant ::: Downloaded on - 25/07/2023 20:39:25 :::CIS patent opposition and also post-grant opposition under Section 25 .
of the Indian Patent Act, filed by the objectors other than the defendants, and the same was rejected by the competent authority, entitling the applicant-plaintiff to continue with grant of Indian Patent No.IN 282092.
17. In view of above, a prima facie case is made out in favour of the applicant-plaintiff, therefore, defendants are restrained by themselves, their Directors, partners, licensees, stockists and distributors, agents and/or anyone claiming through any of them, jointly and severally from infringing the patent rights of the applicant-plaintiff under Indian Patent No. 282092 in any manner including by advertising, marketing and/or selling such product by and through any website(s)/e-portal(s), itself or third- party or any other mode, launching, making, using, offering for sale, selling, importing and/or exporting any product including Zeeka Sulf or any other product covered by the suit patent IN 282092 granted on 30.03.2017 to the applicant-plaintiff.
18. Compliance under Order 39 Rule 3 CPC be ensured within 24 hours.
19. Applicant-plaintiff is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
CMP Nos.325, 326, 327 & 328 of 2023
20. Notice in the aforesaid terms.
(Vivek Singh Thakur) Judge July 24, 2023 (Purohit) ::: Downloaded on - 25/07/2023 20:39:25 :::CIS