Gujarat High Court
Hind vs Shree on 21 August, 2007
Author: Jayant Patel
Bench: Jayant Patel
CS/1/2007 35/ 35 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL SUITS No. 1 of 2007 ========================================================= HIND MOSAIC AND CEMENT WORKS & 1 - Plaintiff(s) Versus SHREE SAHJANAND TRADING CORPORATION & 1 - Defendant(s) ========================================================= Appearance : MR MIHIR THAKOR, SR. ADVOCATE WITH MR YJ TRIVEDI for Plaintiff(s) : 1 - 2. None for Defendant(s) : 1, MR PARTHASARATHY WITH MR PRANAV S TRIVEDI for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 21/08/2007 ORDER BELOW APPLICATION FOR INTERIM INJUNCTION The plaintiffs who are claiming right as patentee preferred Regular Civil Suit No.1432/07 in the Court of City Civil Judge at Ahmedabad for the relief inter alia to declare that the defendants, their persons, Directors, servants, employees, distributors, officers, etc. are not entitled to manufacture, sell, use or offer for sale the impugned products, pipes and fittings produced with the list, manufactured by the defendants which as per the plaintiffs is infringement of the plaintiffs' patent registered under No. 203004 and the plaintiffs have also prayed for a permanent injunction against the defendants, their persons, Directors, agents and distributors, stockists, servants, employees, officers, etc. based on the very patent. It is also prayed in the suit that the defendants be directed to give the true and correct accounts of the products manufactured and marketed by the defendants and it is further prayed to order the defendants to pay the amount of profit earned by them with interest @ 18% from the date of suit till realisation. The plaintiffs have also prayed to direct the defendants to handover the impugned product, advertisement material, sales promotion material, etc. In the said suit, the interim application has been preferred by the plaintiffs seeking temporary injunction restraining the defendants, their persons and Directors, agents, distributors, stockists, employees, officers, etc. from manufacturing, selling, using and offering for sale the impugned product based on the infringement of the plaintiffs' patent. The learned City Civil Judge, Ahmedabad, on the date of institution of the Suit, i.e. 02.07.2007, passed the order below Notice of Motion by way of a temporary ex parte injunction as prayed by the plaintiff. It appears that simultaneously, the application was also made by the plaintiff to appoint Court Commissioner for making inventory of the factory premises etc. of the defendant below which the learned City Civil Judge also passed the order on the very day for appointment of the Commissioner as prayed. The Commissioner did make the inventory. It appears that as per the plaintiffs, the defendant No.2 is the manufacturing unit against whom, principally, there is allegation of infringement of the patent and defendant No.1 was described as the stockist/agent/authorised representative of defendant No.2. The Commissioner did submit the report and as per the report, not a single product of the defendant No.2 is found to be in the inventory and as stated by defendant No.1 before the Commissioner, the defendant No.2 had contacted for sale of the product and therefore, advertisement was issued, but there was no response and no product of defendant No.2 is either brought or sold by defendant No.1. In response to the process issued below application for temporary injunction, the defendant No.2 submitted reply by resisting the application for temporary injunction including on the ground of jurisdiction. However, the pertinent aspect is that simultaneously, the counter claim is also filed by defendant No.2 seeking revocation of the patent No. 203004 (hereinafter referred to as ýSthe patentýý for short). In view of the counter claim seeking revocation of the patent, the suit is transferred to this Court in view of Section 104 of the Patent Act vide order dated 20.07.2007 of the learned City Civil Judge and as the ad interim injunction was granted by the learned City Civil Judge, the same continued pending the hearing of the application for temporary injunction by this Court. I have heard Mr. M.J. Thakor, learned Senior Advocate appearing with Mr. Trivedi for the plaintiff and Mr. Parthasarathy with Mr. Pranav S. Trivedi, the learned advocates appearing for the defendant No.2. The scope of judicial scrutiny in an interim application for temporary injunction in a suit including as that of seeking rights as patentee hardly requires to be stated. The principles are being made applicable for grant of temporary injunction as that of prima facie case, balance of convenience, and irreparable injury would apply even at the time when interim application for temporary injunction is to be decided in a suit seeking right based on the patent. Since in any case, the temporary injunction itself is an equitable relief, the principles of equity and good conscience, i.e. as that of whether the plaintiffs have come with clean hands or bonafide attempt to seek the rights under law etc. would also be applicable to the exercise of powers by this Court while granting temporary injunction. At this stage, the reference may be made to the decision of the Delhi High Court in the case of Bilcare Ltd. Vs. Supreme Industries Ltd. decided on 20th March, 2007 in 2007(34) PTC 444(Delhi) wherein, based on the English Court Judgement in patent cases, such principles are reiterated. Therefore, the first aspect that deserves to be considered is as to whether there is a prima facie case for a valid patent or is it a prima facie case for revocation of such patent? To examine the aforesaid aspects, the factual background deserves to be stated and the same appears to be as under. It appears that earlier, there were two patent registered, one in U.K. on September, 1955, where threads in the pipe was registered as a patent. The essential function of the threads in the pipe was to bind and/or joint two piece of pipes into one with strength. Thereafter, on 12.04.1966, another patent is registered in USA for coupling in pipes having wire locking system. Each wire lock is to join, may be upper or lower piece of the pipe with the coupling. In the year 1968, for threads in the pipe, there is ISI specification being IS4694, 1968, providing basic dimensions for square threads as against the uneven or rounded threads. Such square threads will give more strength to the joint and such effect is obvious to a person skilled in the art. In the year 1985, there is another ISI specification being IS5382, 1985, for rubber sealing rings for gas means, water means and sewer pipelines. Therefore, rubber sealing rings in a pipeline is already provided by ISI specification and known to the public at large. On 05.04.1988, another patent is registered in USA for a coupling for a stainless steel well casing including the squared thread in order to lock two pipes, may be upper or lower in rigid relationship. In 1999, a product is introduced in the market being CERTA-LOK Drop Pipe in which there is no threading between two pipes or coupling, but there is groove and spline design which allows the upper and lower pipe to rotate for assembling and dissembling. The said product also provided that the screw may be applied half to one full turn or only snug so as to tighten and reduce the movement, but in such application of the screw, over tightening was to result into leakage or coupling failure. The coupling is a part which joints upper and lower pipe. The aforesaid was and is in existence. According to the plaintiff, the field of invention is as under: ýSA threaded PVC coupling and pipe joint to join the pipes in water discharge piping system and more particularly to the locking system used in the threaded PVC pipe joint couplings with PVC pipes used for submersible pump applications in bore wells to connect and support the submersible pumps and also to act as delivery pipes to draw water from underground for drinking and irrigation purposesýý Therefore, the only aspect to be considered is as to whether such can be said as invention for which the patent can be granted as per the Patent Act, 1970, (hereinafter referred to as ýSthe Actýý) or not? The legislative provisions which has the relevance and the perusal thereof shows as under: Section 2(j) reads as under: ýSýSinventionýý means a new product or process involving an inventive step and capable of industrial applicationýý. Therefore, invention can be treated of a new product, if such involves an inventive step and capable of industrial application. Section 2(ja) provides for inventive steps which reads as under: ýSýýinventive stepýý means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the artýý Therefore, inventive steps must contain a feature of invention which involves technical advance as compared to the existing knowledge or a technical advance having economic significance, but in both cases, the invention should not be such which would be obvious to a person skilled in the art. To say in other words, it should be extraordinary amongst the persons who are skilled in such field and should not be ordinary to such person applying the skill in such field. The meaning of the word ýSordinaryýý or the word ýSobviousýý is not to be judged from the standard of skill of an ordinary citizen or an ordinary person, but is to be judged from the standard of the knowledge of the person who is skilled or regularly dealing with such art. All inventions are not patentable as per the Act prevailing in India. Inventions not patentable are provided under Chapter II of the Act. The various things are not inventions within the meaning of this Act, but relevat in the present case is Section 3(f) which reads as under: ýSWhat are not inventions: (a)... (b)... (c)... (d)... (e)... (f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known wayýý Therefore, as per the provisions of the Act, if Sections 2(j) & 2(ja) are read with Section 3(f), mere arrangement or rearrangement of known devices, each functioning independently of one another in a known way is not to be treated as an invention for grant of patent. It appears that the alleged product of the plaintiff is a combination which can be classified as arrangement or rearrangement of that known devices. The thread in the pipe as well as in the coupling were known devices prior to the application for patent. The rubber sealing in a coupling was also a known device. The wire locking system was also the known device. Therefore, the contention is that the combination of (1) thread;(2)rubber seal;and(3) wire locking system in a coupling as per the plaintiffs can be described as invention, whereas, as per the defendant No.2, it cannot be described as invention. Even if the contention of the plaintiffs as well that of the defendant No.2 are considered, the fact remains that the product of the plaintiffs is a combination of a known devices. The functioning of the threads is to joint two pipes together which is a known device. Even if the claim is considered further to the extent of squared threads, then also, squared threads were already a known device as per the above referred ISI specification of 1968. Sealing of rubber ring in a pipe or coupling was also a known device as per the above referred ISI specification of 1985. The wire locking system was also a known device as per 1988 US Patent. CERTA-LOK was also a known device. Therefore, the alleged invention of the plaintiffs appears to be a combination of known device by arrangement of square threads, rubber seal and the wire locking. The learned counsel for the plaintiffs contended that such a combination was not obvious to the persons skilled in the art and had it been such obvious, there would have been a product available in the market prior to the application made by the plaintiffs for registration of the patent and therefore, he contended that it is an inventive step which is not obvious to the person skilled in the said art. As such, on conjoint reading of Section 2(j) and 2(ja) with Section 3(f) of the Act, it appears that Section 3 carves out an exception to Section 2(j) read with Section 2(j)(a) of the Act. Therefore, even if the contention is considered for the sake of examination, all inventions are not patentable if such invention falls in the category of classes as defined in Section 3 and more particularly in the present case, Section 3(f). Therefore, even if such invention is not obvious to the persons skilled in the art but is a mere arrangement or rearrangement of a known device, each functioning independently, it would not be an invention which is patentable, since, such inventions would fall in the category of exceptions or are expressly not to be treated as invention for grant of patent by the legislature. Therefore, the mere ground of no such combined product found or such combination not found in the market uptil now is no sufficient ground to consider the product of the plaintiffs as invention for which the patent can be granted. The learned counsel for the plaintiffs further contended that it is not a mere combination of a known device, but is a combined effect of a product where various devices are functioning conjointly. Per contra, the learned counsel for defendant No.2 contended that there is no conjoint functioning of the known devices in a coupling. It was also further contended that if a combination is to create a synergistic effect or synergistic result, then only such combination would be outside the scope of Section 3(f), and therefore invention, for which the patent can be granted. It was submitted by the learned counsel for the plaintiffs that it does create a synergistic effect or result, whereas the learned counsel for the defendant No.2 contended that it does not create synergistic effect or result and therefore, not an invention which is patentable. Before the aforesaid contentions are examined, certain reference to the case laws would be appropriate. The learned counsel for the plaintiff has relied upon the decision of the Bombay High Court in the case of Lallubhai Chakubhai Jariwala Vs. Chimanlal Chunilal & Co. reported in AIR 1936 Bombay 99, which in any case was prior to enactment of the present Act. Further, in the said decision, at page 105, it has been observed that ýSa mere collocation of two or more things however without some exercise of the inventive faculty in combining them is not subject-matter for a patentýý. In case of an application for a patent by I.G.Farben Industries decided on 26.01.1929 reported at XLVI RPC page 271, it was found by the English Court that ýSthe known vulcanizing process applied to the known material products was a better tyre than before and further, on page 273, at line No.35, it was specifically observed that ýSphysical properties were entirely different and applicants were the first to discover that by vulcanising the product they could produce in substance an elasticity which made it even more suitable than ordinary rubber for the manufacture of tyresýý. In the case of Albert Wood and Amcolite Ld. v. Gowshall Ld. reported at LIV page 37, the Court of Appeal of UK recorded on page 39 at line No.35 that ýSeven if it is assumed that the existence of Swan glass was a matter of common knowledge, the Bench found that we do not think that it can be said in a relevant sense to be obvious to use it in a reverse way to that indicated by its inventorýý. In the case of Non-Drip Measure Coy.,Ld. V. Stranger's Ld., & Ors. Reported at LX RPC page 135, the House of Lords in the said decision at page 141 line No.45 onwards found that ýSany workman told to adapt Newland to upward pressure would commence by discarding one of the leading features of the device. If he did he would not be adopting existing device; he would be making another one.ýý In the matter of application by James Yate Johnson for a patent reported at LII RPC page 61, it was recorded by the Patent Appeal Tribunal of U.K. in the said decision at page 64 at line No.10 onwards that ýSit is a new way of stablising the potential difference at the two ends and the arc and it is in my opinion, a new method of attaining the desired stabilityýý. It was found by the Tribunal that ýSit is bringing together of an alternating current rectifier and an arc is to control its own supply from the grid of the rectifierýý. In the case of Cleveland Graphite Broze Coy. & Ors. V. Glacier Metal Coy. Ld. reported at LXVIL RPC page 149. It was recorded at page 156 above line 5 by the House of Lords of U.K. that ýSthere was improvement in liners and there was radical departure from all accepted standardsýý. In the said decision, the phrases used by the witness above line No.25 were ýSa new conceptionýý, ýSa Godsendýý and a ýSradicalýý or a ýSrevolutionaryýý departure. In the case of Martin & Biro Swan Ld. V. H. Millwood Ld. reported in 1956 RPC (73 RPC), page 125, it was observed by the House of Lords of U.K. in the said decision at page 136, at line No.25 that ýSin this combination of integers there is at least one which by itself was not obviousýý. Therefore, the aforesaid decisions relied upon by the learned counsel for the plaintiffs goes to show that in the facts of that case, the English Courts found that such combination or product for which the patent was granted was a novelty or was not obvious to the persons in the skill. In the case of KSR International Co. Vs. Teleflex Inc., decided by the U.S. Supreme Court on April 30, 2007, at page 550, US__2007, after taking into consideration various earlier U.S. Supreme Court decisions on the law of patent, it was observed inter alia as under: ýSThe principles underlying these cases are instructive when the question is whether a patent claiming the combination of elements of prior art is obvious. When a work is available in one field of endeavor, design incentives and other market forces can prompt variation of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.(Emphasis supplied) Sakraida and Andersoný"s-Black Rock are illustrative-a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Following these principles may be more difficult in other cases than it is here because the claimed subject matter may involve more than the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for the improvement. Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.ýý The U.S. Supreme Court further observed at page 23, last para as under: ýSWe build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievements is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Where it otherwise patents might stifle, rather than promote the progress of useful arts.ýý(Emphasis supplied) And ultimately, it was found in the said case that mounting a modular sensor on a fixed pivot point of the Asano pedal was a design step well within the grasp of a person of ordinary skill in the relevant art and therefore, the summary rejection Judgement of the District Court upon a patent was confirmed. In the case of Sabaf Spa Vs. MFI Furniture Centres Ltd. reported at 205 RPC page 10, House of Lords of UK at para 18 while examining the combination of features, the statement of principles inter alia observed as under as under: ýSIn other words, the interactions of individual features, must produce a synergistic effect. If no such synergistic effect exists, there is no more than a mere aggregation of features.ýý In the case of Peterson Portable Sawing Systems Ltd.& Anr. V. Rex Cameron Lucas reported at 2006 NZSC page 20, the Supreme Court New Zealand has reaffirmed the principles as adopted in England for considering the combination as patent if it creates synergistic effect or result. If the matter is examined in light of the aforesaid case laws with the facts of the present case, it does appear that the claim of the plaintiffs comprises of the combined effect of a square thread, rubber seal, and a wire lock in a coupling pipe joint. The functions of squared thread was known and is also specified by ISI specification as back as in the year 1968. The function of square thread in a pipe or coupling is to joint one another. There is no additional function made in the alleged invention of the plaintiffs. Further, the rubber sealing in a coupling of a pipe is also known as per the ISI specification as back as in the year 1985. The function of rubber seal is to protect against leakage and sealing of the gap and there is no addition made in the alleged invention. The shutter lock system is also known as back as in the year 1999 with the plastic wire. The lock is to retain the pipe with which the coupling is connected. Whether used by a plastic wire or metallic wire does not add to its functioning. It functions as lock. Therefore, in the alleged invention of the plaintiffs, no additional functioning is added to the wire lock system. Further, it appears that though combined devices known prior to the application of the plaintiffs are included in one coupling by way of combination, there is no element of interconnected functioning of such device. Each device can exist independently in the coupling and would function as per the normal expectations in absence of other device, may be as that of square thread or rubber seal or a wire lock. As there is no interconnected or interrelated functioning to each device in the alleged invention of the plaintiffs, it cannot be said that it creates any synergistic effect. If the meaning of the word ýSsynergicýý and ýSsynergistýý and is to be considered, it reads as under: Synergic: Acting or working together, as when several muscles cooperate in the performance of a movement. Synergist: A medicament which supplements the action of another, often to such an extent that the combined action is greater than the sum of effects of the two drugs independently administered. As the muscles in the body work in an interrelated, interconnected and interwoven manner, so could be the functioning in a combination to equate the same as outside the category of Section 3(f) of the Act and to be treated as invention-patentable. Therefore, in view of the aforesaid, it appears that the invention for which the patent is granted, would fall in the category of Section 3(f) being exception to Section 2(j) and 2(ja) of the Act, and therefore, the invention not patentable as per the provisions of the Act and hence, liable to be revoked. It may also be mentioned that the plaintiff in the affidavit has relied upon Patent Cooperation Treaty(PCT) report of ISA/US Commissioner of Patents Alexanderia, Virginia, in response to plaintiffs' application No. PCT/IN 04/000147 for contending that as per the said PCT report, as it is a novelty and inventive step since as per the plaintiff, all claims narrated by the plaintiff from 1 to 12 are accepted being novelty and being inventive steps. The plaintiff in the said affidavit has not even whispered of any application made for similar PCT report to any other country of the world. It is only when the learned counsel for the defendant No.2 during the course of hearing after searching in the website of WIPO, placed the report of another PCT of Austrian Patent office at Vienna in response to the application of the plaintiff No. PCT/IN2004/000147(both common number and the common date, appears to be one made to PCT at US, Virginia and another to PCT at Austria, Vienna) that the claim of the plaintiffs is not a novelty nor inventive step, the plaintiffs admitted during the course of the hearing before the Court through the learned counsel Mr. Thakor that the application was made to PCT, Austria. However, the submission was made that the report is not received by the plaintiffs. Leaving aside the aspects of the conduct on the part of the plaintiffs, which may be dealt with hereinafter in the subsequent paragraph appropriately. It deserves to be recorded that the opinion of PCT, either at US, Virginia or Austria, Vienna, is not binding to this Court. Further, it is not known as to whether Section 3(f) of the Act, which exist in the statute book and law prevailing in our country is considered or not. In any event, one PCT report of one country Austria, Vienna found as not a novelty or not an invention and the other PCT report of US, Virginia found a novelty or an invention and therefore, the reliance placed by the plaintiffs upon the only report of PCT, US, Virginia cannot be accepted, and rather can be said as misleading to the Court by giving only one-sided version and suppressing the other relevant circumstance of PCT report of Austria, Vienna. Therefore, in view of the above observations, there is no prima facie case at all on merit for sustaining the patent, but on the contrary, the prima facie case is for revocation of the patent, since the legislature expressly has barred such invention to be made as patentable. Even on the aspects of equitable consideration, as observed earlier, the PCT report of US, Virginia, which was pressed in service as an expert opinion, is a part truth put forward by the plaintiffs by suppressing the other part of the truth which was against the plaintiffs. Such conduct on the part of the plaintiffs can disentitle the plaintiffs to seek an equitable relief of temporary injunction. Further, in the plaint, at para 11, vide Sr. No.2, in describing the inventive steps, it is mentioned at last four line as under: ýSThese threads have been designed for the first time in the world by the plaintiff company.ýý As recorded hereinabove, square type of threads was already in existence as back as in the year 1968 as per ISI specification. The dimension as such is not specifically claimed in the patent, but in any case, the dimensions would not substantially and materially alter the functioning of a device of a square thread. The said statement made is contrary to known existing devices of square thread as specified by ISI specification as back as in the year 1968. So is the case in item No.3. In the last line, the statement made is that: ýSThese types of combination rings have been designed for the first time by the plaintiffýS Whereas, such combination rings were already in existence as per ISI specification of rubber seal as back as in the year 1985. The learned counsel for the defendant No.2 appears to be right in contending that the aforesaid two statements as claimed by the plaintiffs that ýSfor the first time innovated in the worldýý are not only misleading, but false and it may have misled the Court of the learned City Civil Judge to grant ex parte order. The aforesaid conduct on the part of the plaintiffs would go against the plaintiffs to disentitle them to seek an equitable relief of temporary injunction. In absence of any prima facie case in favour of the plaintiffs and the existence of prima facie case for revocation of the patent would clearly go to show that a legal irreparable injury would be to defendant No.2 if the temporary injunction is granted. If there is no lawful right with the plaintiffs to sustain the patent and consequently the infringement, any injunction continued or granted would cause irreparable injury to the person facing the injunction, i.e. the defendant No.2 herein. The ex parte injunction granted by the learned City Civil Judge is to stop the production and further action of the defendant No.2 for the alleged patented product. Therefore, if the suit is subsequently dismissed or petition is revoked, the loss caused including that of by putting the production activity to a total grinding halt by the temporary injunction would create an irreparable injury to the defendant No.2 and therefore, keeping in view the principles of irreparable injury, it is a case of not granting an injunction against the defendant No.2. Even on the aspects of balance of convenience, the claim made by the defendant No.2, is that it is manufacturing the product since more than two years. Therefore, if the temporary injunction granted is continued, the manufacturing activity of the defendant No.2 shall be put to grinding halt though there being no prima face case on merits with the plaintiffs. Further, even if the plaintiffs succeed in the suit, ultimately, the second relief of damage and the profit by compensating in terms of money can be granted. Therefore, the principles of balance of convenience are also against the plaintiffs for not continuing with the ex parte injunction and/or for grant of temporary injunction as prayed. Much has been argued by the learned counsel for the defendant No.2 on the aspects of jurisdiction alleging that the defendant No.1 is the person of the plaintiffs and not at all an agent or authorized agent of defendant No.2. It was also submitted that with a view to invoke the jurisdiction of the City Civil Court at Ahmedabad, the defendant No.1 is projected and the advertisement is published though the report of the Commissioner not at all supports the case of the plaintiffs. Further, the suit is filed on 02.07.2007. The alleged advertisement is dated 05.06.2007 on the name of the person who is not the authorized agent or representative of the defendant No.2 and the alleged bill produced for so called purchase of the pipe fittings is dated 03.07.2007, i.e. of the next date to the date of filing of the suit and in the bill, there is no description as to whether the product which was being manufactured and marketed by the defendant No.2 is sold or not. Therefore, it was submitted on behalf of the defendant No.2 that the statement made in the plaint and in the rejoinder are only to attract the jurisdiction in Gujarat, though the plaintiff No.2 as well as defendant No.2 both are working at Banglore, and therefore, prima facie creates doubt on the bonafide conduct of the plaintiffs. Whereas on behalf of the plaintiffs, it was asserted that the advertisement was given by the defendant No.2, not only in the local newspaper but also in the magazine and as the infringement was found reported in Ahmedabad, the jurisdiction is rightly invoked. It was also submitted that the defendant No.2 has surrendered to the jurisdiction of this Court by filing the counter claim for revocation of the patent and therefore, now it does not lie in the mouth of the defendant No.2 to contend that there is no jurisdiction or the jurisdiction is wrongly invoked. It was submitted that the defendant No.2 is debarred or estopped from raising the contention on the point of jurisdiction. In my view, even if it is considered for the sake of examination that invoking of the jurisdiction of the City Civil Court at Ahmedabad at the first instance by the plaintiffs was doubtful, the law on the subject is that for invoking the jurisdiction of the Court, averments in the plaint are to be considered at the initial stage, unless established on facts otherwise. Further, the defendant No.2 has surrendered to the jurisdiction by filing counter claim for revocation of the patent. Therefore, in view of the present circumstances, it is not a case of rejection of the application on the ground that the Court which granted ex parte injunction or this court has no jurisdiction to entertain the suit or the interim application for temporary injunction therein. In view of the aforesaid observations and discussions, even if on the point of jurisdiction, the contention of the plaintiffs is accepted on the aspects of temporary injunction, as there is no prima facie case for sustaining of the patent and as there is a prima facie case for revocation of the patent, and as the principles of irreparable injury and balance of convenience are against the plaintiffs and in favour of the defendant No.2, the ex parte injunction granted deserves to be vacated and as there is no case for temporary injunction as prayed, the application for interim injunction is vacated. Hence, ordered accordingly. However, it is clarified that all rights and contentions of both the sides at the time of final disposal of the suit or counter claim, as the case may be, shall remain open on the basis of evidence as may be available on record before this Court at the time of final disposal of the suit or the counter claim as the case may be and the observations made in the present order are prima facie to decide application for temporary injunction only. (JAYANT PATEL, J.) ORAL ORDER
21.08.2007 After the pronouncement of the order, Mr. Thakor, learned counsel for the plaintiff prayed that the operation of the ex-parte order be continued for some time, so as to enable the plaintiffs to approach before higher forum.
Considering the facts and circumstances and more particularly in view of the reasons recorded in the order, the said request is declined.
(JAYANT PATEL, J.) *bjoy