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4. This Court had granted ex parte orders of ad-interim injunction in favour of the applicant/plaintiff.
5. The fourth respondent/4th defendant had filed application Nos.2278 and 2279 of 2006 in O.A.Nos.494 and 495 of 2006 in C.S.No.448 of 2006 for vacating the ex parte orders of ad-interim injunction granted in favour of the applicant/plaintiff. In the affidavit filed in support of the above said applications, the 4th respondent/4th defendant has stated that the claim of the applicant/plaintiff that he conceived idea of artificial laminated banana leaves for serving and storing food and it is his original, intellectual property is wholly unsustainable. It is further submitted by the 4th respondent/4th defendant that the lamination is a technology well known in India for several decades and several companies including M/s.Jailaxmi Engineering Corporation manufactured machines which are used for lamination of paper and other products and the 4th respondent/4th defendant also makes necessary dyes ready for printing and cutting paper to a particular shape. The concept of food-grade laminated paper is well known and used all over the world and both the process of manufacture of food-grade laminated paper (method and apparatus) and the product itself are well known and used in India. It is also submitted by the 4th respondent/4th defendant that the patent obtained by the applicant/plaintiff is only the process patent and not a product patent and even at the time of pendency of the application for patent, he filed application before the concerned authority for patent pre-grant opposition and after the grant of patent also, he filed post-grant opposition and the same are pending adjudication. It is a specific case of the 4th respondent/4th defendant that the modifications made to printing machine by the applicant/plaintiff are not novel and do not constitute an invention within the meaning of Patents Act. The manufacturing process involved is nothing but laminated paper which is green in colour with a design and cut in the shape of banana leaf cannot be termed as original or intellectual property of the applicant/plaintiff and the leaf of a banana plant is a product of nature and no person can have proprietary right over such shape or even claim that he designed a banana leaf. It is also the submission of the 4th respondent/4th defendant that mere grant of patent alone does not lead to a prima facie conclusion that the Patent is valid or that it is a novel or new and he is not copying the method and process adopted by the plaintiff for manufacture of laminated paper. On a point of law, it has been contended by the 4th respondent/4th defendant, that an application for ad-interim injunction restraining him from passing off is not maintainable in terms of the provisions of the Patents Act, 1970.
9.Now, the points for consideration in these appeals are:-
(a) Whether the application for ad-interim injunction is maintainable in a suit filed under Patents Act,1970?
(b) Whether the order of ad-interim injunction granted in O.A.No.495 of 2006 restraining the 4th respondent/4th defendant from in any manner passing off artificial banana leaves (food-grade laminated paper) manufactured and sold by him as and for applicant's artificial banana leaves, is sustainable?
(c) Whether the order passed in O.A.No.494 of 2006 dismissing the application filed by the applicant/plaintiff for ad-interim injunction restraining the respondents/defendants from in any manner infringing the applicant's registered patent in respect of food-grade laminated paper, method and apparatus for manufacture laminated paper is liable to be set aside?

20. No monopoly rights no injunction can be granted:

The learned senior counsel appearing for the appellant in O.S.A.No.263 of 2006 reiterated the submissions that since 4th respondent/4th defendant had already filed necessary applications pre-grant as well as post-grant oppositions to the patent and there is serious doubt regarding the grant of patent in favour of the applicant/plaintiff, the learned single Judge ought not to have granted ad-interim injunction restraining the 4th respondent/4th defendant from passing off his product namely artificial banana leaves. The learned senior counsel further submitted that there are prima facie materials to show that patent and designs are not validly registered. The order of ad-interim injunction granted in favour of the applicant/plaintiff created a monopoly in favour of the applicant/plaintiff and the same is unsustainable in law and on facts. The learned senior counsel further submitted that in the absence of any pleadings claiming equitable relief of injunction under common law, the grant of ad-interim injunction under Patents Act in favour of the applicant/plaintiff is prima facie unsustainable in law. It is also submitted by the learned senior counsel that the applicant/plaintiff miserably failed to establish the ingredients for grant of ad-interim injunction in his favour and therefore the interim order granted in O.A.No.495 of 2006 is liable to be set aside and consequently the O.S.A.No.263 of 2006 is to be allowed.

50. It is also submitted by the learned senior counsel Mr.Arvind P.Datar that even though the applicant/plaintiff claims both product and process patent, a cursory perusal of the pleadings would disclose only a process patent, which according to the 4th respondent/4th defendant, it is not involved in any novelty or invention.

51. Lastly, the learned senior counsel Mr.Arvind P.Datar submitted that the discretionary relief of order of ad-interim injunction can be granted only under common law in the absence of any provisions in the Patents Act, but no such pleadings are available in the plaint and no such averments are available in the affidavit filed in support of the applications for ad-interim injunction. Therefore, according to the learned senior counsel, the order of ad-interim injunction granted in O.A.No.495 of 2006 is per se unsustainable and is liable to be set aside and the appeal filed by him in O.S.A.No.263 of 2006 is to be allowed with costs.