Presumption of Validity of Patent – No – New Argument

Garware-Ropes v M/s Techfab India & Ors. (AIR 2008 GUJ __)

• Gujarat High Court refused to grant the injunction while deciding that the compensation to be an adequate remedy in Patent infringement case at the Injunction stage. Hon’ble Divisional Bench of Gujarat High Court upheld the judgment of Ld. Single Judge that held that compensation would be an adequate remedy and no injunction would be granted where there is serious challenge to validity of Patent in revocation petition. The court held that “The Court finds some substance at this stage in the submission that no interim injunction protecting the patent and restraining the defendant from continuing the manufacturing and marketing of products in dispute would be granted if the patent is new, its validity has not been upheld in any judicial proceedings and serious controversy raised regarding its validity either by filing an application in revocation or claiming revocation and counter claim in the suit.”
• Although Indian Supreme Court in the case of Bishwanth Prasad Radhey Shyam V/s. Hindustan Metal . Industries, 1982 SC 1444 held that there is no presumption of validity of patent but this question always creeps in the cases. This Court also looked into this point. Even though the Court did not changed the precedents and decided that there is no presumption of validity under section 13(4) of the Patents Act but Court pointed out that a separate provision has been provided in Section 113 (1) authorizing the High Court in such proceedings as the present matter to provide a certificate of validity to a claim in a patent. Therefore, if the High Court finds that in such a matter, the claim is not valid, the patent should be revoked.
• This is the first time any Court has taken this argument while deciding on the point but now one thing is clear that all the High Courts have adopted the view i.e. there is no presumption of validity of patent under the Act. At least something is consistent in Indian Patent law.

Government to form National Institute of Intellectual Property Management

Recently WIPO published its report that India lags behind most of the nations in filing the patent applications. This report has prompted the government to work on a National Institute of Intellectual Property Management to handle training, education, research and think-tank functions in intellectual-property rights. Economic Times reports here
This Report clearly indicates that India is well behind the Asian countries like China, Korea, Japan. PCT filings in 2007 by Indian nationals stand at paltry 686 whereas the applications field by Chinese nationals is around 5456.
Its well know that there is no dearth of intellectuals in India then what is the basic reason for such filing numbers. Whether the people do not have the training or information about the PCT filing or what? One way is that Indian law should educate their clients about the benefits of PCT filing

TVS-Bajaj Judgment - Critique

I have gone through the tvs-bajaj judgment recently. I found one thing interesting in the judgment that there is not even a paragraph on “how the infringement of patent is determined”? Is this a judgment u expect in the patent infringement case? I don’t know.
I do not agree with interpretation of claims done by court and argued by Bajaj. Isn’t the argument of bajaj that the invention is for twin spark plugs in small bore engine for efficient burning of lean air-fuel mixture goes against section 10 (4) (c) of the patents act? According to me the scope of the patent is determined by the claims i.e. each and every element of the claim is the limitation of the patent and scope is not determined by the mere statements of the Patentee.
Any comments

Good judgment but bad reasoning

Dhanpat Seth v M/s Nil Kamal Plastic Crates Ltd. AIR 2008 HP (judgment dated 20.09.2007) http://hphighcourt.nic.in/inetjudord/judgements/OSA82006.pdf

Himachal Pradesh (HP) High Court recently refused to grant the interim injunction because the invention was known since ages (i.e. traditional knowledge). It was correct to upheld the single Judge finding that Patent law and Trademarks are two different legal regime and the principles of one cannot be applied to another. According to me, in this beautifully crafted judgment there are two flaws:

• The Hon’ble Judges visually compared the products and stated that A visual comparison of the three items prima facie establishes that the articles manufactured by the plaintiffs and the defendant are virtual copies of the traditional Kilta. In my opinion, this is not correct approach as while judging the patentability or infringement, one must look the claims of the Patent and not the product made out of that Patent.
• Hon’ble Court relied on American Cyanamid v Ethicon [1975] 1 All E.R 504 for the principles of interim injunction but this judgment is not a good law in India as it has been diluted by Supreme Court in Colgate Palmolive and Gujarat Bottling cases.

News Update

Patent Office

• Indian Patent office has started the new tab for searching Patent Controller’s decisions see https://www.ipindiaonline.gov.in/patentdecisionsearch/patentsearch.aspx


• 18 moth publication see https://www.ipindiaonline.gov.in/patentpublishedSearch/(S(mcwbn555tsrz5u45cypzdv55))/patentwebSearch.aspx


• Copy of granted Patents see https://210.210.88.164/patentsearch/patentsearch.aspx

2007 cases

1. Validity of Section 3 (d) of Indian Patent Act. see Ranbaxy v Union of India

2008 cases

• Good judgment but bad reasoning

Dhanpat Seth v M/s Nil Kamal Plastic Crates Ltd. AIR 2008 HP (judgment dated 20.09.2007) http://hphighcourt.nic.in/inetjudord/judgements/OSA82006.pdf

Himachal Pradesh (HP) High Court recently refused to grant the interim injunction because the invention was known since ages (i.e. traditional knowledge). It was correct to upheld the single Judge finding that Patent law and Trademarks are two different legal regime and the principles of one cannot be applied to another. According to me, in this beautifully crafted judgment there are two flaws:

• The Hon’ble Judges visually compared the products and stated that A visual comparison of the three items prima facie establishes that the articles manufactured by the plaintiffs and the defendant are virtual copies of the traditional Kilta. In my opinion, this is not correct approach as while judging the patentability or infringement, one must look the claims of the Patent and not the product made out of that Patent.
• Hon’ble Court relied on American Cyanamid v Ethicon [1975] 1 All E.R 504 for the principles of interim injunction but this judgment is not a good law in India as it has been diluted by Supreme Court in Colgate Palmolive and Gujarat Bottling cases.

• Public Policy

India Rejects Injunction Application on the ground of "public policy". see Roche v Cipla

• Supreme Court Order

Supreme Court gave an order that while deciding the patent infringement case the lower court should look into scope of revocation petition filed by the defendant while determining the case. see http://courtnic.nic.in/supremecourt/temp/dc%20468508p.txt

• Well Defined Reasoning

Patent office has to give well reasons while rejecting the patent application under sec. 15 of the Act. see Rolic Ag et al v The Controller of Patents (19.03.2008 - IPAB Chennai)

A new start

Hi all,

I am trying to start a new blog for the litigation news in the field of Patents in India. I was reading an article today that Intellectual Property is still a frightening concept to most of the companies but I found that patent litigation is increasing in India day by day. In last two years, I suppose two patent cases (Novartis v Ranbaxy – Glivec and Bajaj v TVS – twin spark plug) made the news more than any litigation in India. I think that most of Indian companies or lawyers will not know about the ongoing patent litigation in India until the case is either published or it generates some amount of public interest. I will try to make the database of Indian Patent cases on this blog and try not to infringe any copyright of publisher. I would be submitting the cases freely available on net. I am open to any suggestion about the contents of the blog.

Hunt