Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 11 October, 2019
+ RFA(OS)(COMM) 41/2019
GAUR HARI GUCHHAIT & ORS ..... Appellants
Through: Mr. Manav Kumar & Mr. Manoj
Kumar Sahu, Advs.
Versus
SHOGUN ORGANICS LTD ..... Respondent
Through: Mr. Sanjeev Sindhwani, Sr.Advocate,
Ms.Rajeshwari H., Mr. Saif Rahman Ansari &
Mr.Swapnil Gaur, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE REKHA PALLI
JUDGMENT
: D.N. PATEL, Chief Justice (Oral)
CAV 1010/2019
Since learned counsel for the caveator are present, caveat stands
discharged.
CM APPL.44549-44550/2019 ( Exemptions )
Allowed, subject to all just exceptions.
RFA(OS)(COMM) 41/2019
1. This appeal has been preferred by the original defendants in a Civil
Suit being CS(COMM) No.201/2017. The civil suit was filed by the
respondent in these proceedings alleging breach of process patent by the
original defendants. The suit was decreed vide judgment and decree dated
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14 August, 2019 (Annexure – A to the memo of this first appeal).
RFA(OS)(COMM) 41/2019 Page 1 of 19
2. Factual Matrix:
For the product d-trans Allethrin, an application was preferred by the
original plaintiff in the year 1995 under Section 9 of the Insecticides
Act, 1968 (hereinafter referred to as “the 1968, Act” ).
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On 17 March, 1997, the original plaintiff was granted registration
under Section 9(3) of the 1968, Act and the product was registered.
Thereafter the appellant No.4 (original defendant No.4) applied for
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registration for d-trans Allethrin on 20 February, 2006.
The original defendant No.4 was granted registration under Section
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9(4) of the Act, 1968 on 13 February, 2007.
The original plaintiff preferred an application for registration of the
patent for the “Process of manufacturing of d-trans Allethrin” .
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This application was preferred on 10 May, 2007.
After following the procedure under the Patents Act, 1970 (hereinafter
referred to as “the 1970, Act” ) by obtaining the first examination
report and thereafter rejection of the pre-grant opposition filed by
defendant No.4 under Section 25(1) of the 1970, Act the Patent was
granted to the original plaintiff.
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Pre-grant opposition was dismissed vide order dated 30 June, 2009
by the Patent Office.
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Patent was granted to the original plaintiff on 13 November, 2009.
Thereafter under Section 25(2) of the 1970, Act “post grant oppositions”
were filed by original defendant Nos.4 and 5.
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These post grant oppositions were allowed vide order dated 26 June,
2013 by the Patent Office.
Thus, the process patent granted to the plaintiff was revoked vide order
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dated 26 June, 2013.
RFA(OS)(COMM) 41/2019 Page 2 of 19
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Being aggrieved and dissatisfied by the order dated 26 June, 2013,
the original plaintiff preferred an appeal before Intellectual Property
Appellate Board (IPAB). This appeal was allowed vide order dated
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18 August, 2014. Thus, the process patent was revived/granted again
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by quashing and setting aside the order dated 26 June, 2013 and the
matter was remanded back to the learned Deputy Controller of Patents
and Design.
After remand, the Patent Office reheard the “post grant oppositions”
filed by original defendant Nos.4 and 5. After giving opportunity of
being heard to the concerned parties, the Patent Office rejected the
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“post grant oppositions” vide its order dated 16 February, 2016,
which had been initiated by defendant Nos.4 and 5 under Section
25(2) of the 1970, Act. Thus, the process patent was continued to be
in favour of the original plaintiff.
Thereafter, an appeal has been preferred by the defendant Nos.4 and 5
before the IPAB and the same is presently pending.
The original plaintiff started manufacturing “d-trans Allethrin” with
their patented process from 2010 onwards.
It is alleged by the original plaintiff that the original defendants have
also started manufacturing d-trans Allethrin with the same process,
which is patented by the original plaintiff from October, 2014.
Hence, a suit was instituted by the original plaintiff being CS(OS)
No.3882/2014 which was converted into CS(COMM) No.201/2017,
for getting permanent injunction restraining the defendants from
infringement of its patent – IN – 236630 (IN „630) pertaining to the
“process for manufacturing d-trans Allethrin” which is used as an
active ingredient in mosquito repellents and other mosquito control
RFA(OS)(COMM) 41/2019 Page 3 of 19
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products. The suit was decreed vide judgment and decree dated 14
August, 2019 and hence the original defendants have preferred the
present RFA(OS)(COMM) No.41/2019.
3. Arguments canvassed by appellants (original defendants):
(a) It is submitted by the counsel for appellants (original
defendants) that as per a conjoint reading of paragraph 15 with
paragraph 22 of the plaint of the original plaintiff, the process
for manufacturing d-trans Allethrin was already known and
these appellants (original defendants) were also using the same
process because the product was already registered under
Section 9(4) of the 1968, Act. This aspect of the matter has not
been properly appreciated by the learned Single Judge while
deciding CS(COMM) No.201/2017 and hence the judgment and
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decree dated 14 August, 2019 passed by the learned Single
Judge deserves to be quashed and set aside. Once the process
for manufacturing d-trans Allethrin was already a known
process, there cannot be a registration of the same under the
1970, Act in favour of the original plaintiff. This defence which
was raised under Section 107 of the 1970, Act has not been
properly appreciated by the learned Single Judge.
(b) It is further submitted by the counsel for appellants (original
defendants) that these appellants had disclosed their process of
manufacturing d-trans Allethrin and registered the same under
Section 9(4) of the 1968, Act. Looking to the averments made
in paragraph 15 and 22 of the plaint, the process for
manufacturing of d-trans Allethrin was already a known process
and was also followed by the defendants and hence no process
RFA(OS)(COMM) 41/2019 Page 4 of 19
patent could have been registered in favour of the plaintiff.
(c) It is further submitted by the counsel for appellants (original
defendants) that against the grant of the patent after the order
passed by IPAB and after rejections of “post grant oppositions”
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by the Patent Office vide its order dated 16 February, 2016, an
appeal has been preferred by the original defendant Nos.4 and 5
before the IPAB and the same is pending. This aspect of the
matter has also not been properly appreciated by the learned
Single Judge. Counsel appearing for the appellants (original
defendants) further submitted that under the Right to
Information Act, 2005, a reply has been given by Ministry of
Agriculture which is at page 215 to the memo of this appeal to
the effect that the process followed by the plaintiff and that
followed by the defendants is similar. This aspect of the matter
has also not been properly appreciated by the learned Single
Judge while deciding CS(COMM) No.201/2017 vide judgment
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and decree dated 14 August, 2019 and the same may,
therefore, be quashed and set aside.
4. Arguments canvassed by respondent (original plaintiff):
(a) Counsel appearing for the respondent (original plaintiff)
submitted that there is a vast difference between “ the product”
and “ process for manufacturing of product ”. What is
registered under the Act, 1968 is a product of the plaintiff under
Section 9(3) thereof. The 1968, Act is not a registration of the
process of manufacturing of the product whereas the
registration of the process patent under the 1970, Act is
altogether another aspect of the matter because under the 1970,
RFA(OS)(COMM) 41/2019 Page 5 of 19
Act what is registered is “Process patent” of manufacturing of
d-trans Allethrin.
(b) It is further submitted by the respondent (original plaintiff) that
even if the product of these appellants (original defendants) is
registered under Section 9(4) of the 1968, Act that does not
mean that the original defendants can violate the process patent
obtained by the original plaintiff. This aspect of the matter has
been properly appreciated by the learned Single Judge while
deciding CS (COMM) No.201/2017 vide judgment and decree
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dated 14 August, 2019 and hence this appeal may not be
entertained by this Court.
(c) It is further submitted by the counsel for respondent (original
plaintiff) that the process patent registered in favour of the
original plaintiff for manufacturing of d-trans Allethrin creates
a monopoly for a certain period of years in favour of the
Patentee – original plaintiff which is respondent in this appeal.
There is an infringement of the process patent by these
appellants (original defendants). This aspect of the matter has
been proved by the evidence given by PW1 – Mr. Mangesh
V.H. It is also submitted by the counsel for respondent
(original plaintiff) that the product manufactured by the
appellants, namely „MAXO‟ was analysed by the Head of the
Department of Research and Development of the original
plaintiff. Chromatography was also adopted for analyzing the
product and it has been mentioned by the plaintiff‟s witness in
detail as to how the original defendants have violated the
process patent of manufacturing of d-trans Allethrin.
RFA(OS)(COMM) 41/2019 Page 6 of 19
(d) It is further submitted by the counsel for respondent (original
plaintiff) that despite the following orders passed by the learned
Single Judge in CS(COMM) No.201/2017, the manufacturing
process used by the original defendants has not yet been
disclosed to the Court:-
(i) 23.12.2014, and
(ii) 21.07.2015
Despite these orders, the original defendants have not
disclosed that their manufacturing process of d-trans Allethrin
and therefore a presumption may be drawn against them under
Section 114 of the Indian Evidence Act, 1872.
(e) It is further submitted by the counsel for respondent (original
plaintiff) that while the 1968, Act there is a registration of a
“ product ” whereas under the 1970, Act the process of
manufacturing of the product is given protection. Thus, the
basic allegation in the plaint is that there is an infringement of
patent of the plaintiff by the original defendants. While
narrating the details of the infringement of the patent by the
defendants in paragraphs 15 and 22 of the plaint, the earlier
history has been given but there is nothing in paragraphs 15 and
22 of the plaint which suggests that “process of the product was
registered under the 1968, Act”.
(f) It is further submitted by the counsel for the respondent
(original plaintiff) that there is no requirement of disclosing the
manufacturing process of the product under the 1968, Act
especially looking to Form No.1 to the First Schedule provided
under the Insecticides Rules, 1971 enacted under the 1968, Act.
RFA(OS)(COMM) 41/2019 Page 7 of 19
(g) It is further submitted by the counsel for respondent (original
plaintiff) that any narration supplied under the Right to
Information Act is not conclusive evidence of the interpretation
of the 1968, Act read with the 1970, Act. Even if a confused
reply is given by the concerned authority under the Right to
Information Act to the original defendants, the fact remains that
what is registered under the 1968, Act is a registration of a
“ product” whereas what is registered under the 1970, Act is a
“ process for the manufacturing of d-trans Allethrin” .
(h) Thus, the aforesaid two Acts are meant for different purposes;
one is for registration of the product to be used as an insecticide
and the other is for protection of the process of manufacturing
of the product. These facts cannot be diluted by a confused
answer given under the Right to Information Act. It is further
submitted by the counsel for respondent (original plaintiff) that
neither under Section 30 of the 1970, Act nor under Section 26
of the Patents and Designs Act, 1911, disclosing the process of
manufacturing to the Government authority would tantamount
to a disclosure to the public at large and hence even if it is
presumed that under the 1968, Act the process was given to the
Government in the year 1997, it cannot be held to mean a
disclosure to the public at large. This aspect of the matter has
also been properly appreciated by the learned Single Judge
while deciding CS (COMM) No.201/2017 vide judgment and
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decree dated 14 August, 2019 and hence Regular First Appeal
may not be entertained by this Court.
RFA(OS)(COMM) 41/2019 Page 8 of 19
5. Reasons
(i) The present appellants were the original defendants in the
CS(COMM) No.201/2017. The respondent (original plaintiff) had
alleged the infringement of process patent No. IN -236630 (IN-
„630) by the original defendants. The said patent, patented by the
original plaintiff, relates to “process for manufacturing d-trans
Allethrin” which is used as an active ingredient in mosquito
repellents and other mosquito control products.
(ii) The original plaintiff had preferred an application for registration
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of the process of manufacturing of the product on 10 May 2007 in
accordance with the procedure stipulated under the 1970, Act.
Prior to the grant of the patent, the pre-grant opposition was
preferred by the original defendant No.4 under Section 25(1) of the
1970, Act and upon rejection of the pre-grant opposition the patent
was ultimately granted to the original plaintiff.
(iii) After the grant of the patent, “post grant oppositions” were filed by
original defendant Nos.4 and 5 under Section 25(2) of the 1970,
Act. These post grant oppositions were accepted and the patent
was revoked.
(iv) An appeal was preferred by the original plaintiff against the
revocation of the patent before the Intellectual Property Appellate
Board (IPAB). The appeal of the original plaintiff was allowed by
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the IPAB vide their order dated 18 August, 2014 and the matter
was remanded to the Patent Office. The Patent Office reheard the
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post grant oppositions and dismissed them vide order dated 16
February, 2016. Thus, the grant of patent, which is in fact a
“process patent”, was continued in favour of the original plaintiff.
RFA(OS)(COMM) 41/2019 Page 9 of 19
(v) Much has been argued out by the appellants (original defendants)
that once the product was registered under Section 9(4) of the
1968, Act and the original defendants had set out their process of
manufacturing while seeking registration under the 1968, Act, the
process of manufacturing was a known process for which there
could not have been any subsequent grant of patent in favour of the
original plaintiff. This defence has been raised under Section 107
of the 1970, Act by the original defendants. We are not in
agreement with this contention raised by these appellants (original
defendants) for the reasons that:
(a) The registration of a product under the 1968, Act has
nothing to do with the recognition of manufacturing process of the
product;
(b) Even the original plaintiff‟s product is registered under
Section 9(3) of the 1968, Act. The original defendant‟s product is
also registered under Section 9(4) of the 1968, Act. What is
registered is the “ product” for use as an insecticide and not the
“method of the manufacturing of product”. It appears that the
defendants have tried to create a confusion between the
registration of the product and the manufacturing process of the
product. In fact, the product is one which is registered under the
1968, Act and for registration of manufacturing process of the
product is carried out under the 1970, Act.
(c) Thus, what the original plaintiff has gotten registered
under the 1970, Act is the process of manufacturing of d-trans
Allethrin. This registration under the 1970, Act is a monopoly
created in favour of the original plaintiff, for a limited number of
RFA(OS)(COMM) 41/2019 Page 10 of 19
years, which is known as “a process for manufacturing of d-trans
Allethrin.”
(d) Thus, what is registered under the 1968, Act is a
registration of a product - d-trans Allethrin whereas what is
registered under the 1970, Act in favour of original plaintiff is a
“process of manufacturing of d-trans Allethrin”.
(e) Thus, even if the product of the original plaintiff and
original defendant were already registered under the 1968, Act,
then also the original defendants cannot infringe the “process
patent” granted to the plaintiff. Even if the product of the original
defendants d-trans Allethrin is registered under Section 9(4) of the
1968, Act, then they cannot, without permission of the original
plaintiff, follow the method of manufacturing of d-trans Allethrin
for which the patent has been granted to the plaintiff.
(vi) In the facts of the present case, it appears that d-trans Allethrin can
be manufactured by several methods, but a method of
manufacturing d-trans Allethrin has been innovated by the original
plaintiff, for which patent has been granted to the original plaintiff.
This aspect of the matter has been properly appreciated by the
learned Single Judge.
(vii) Looking to the evidence on record given by PW1, Head of the
Department of Research and Development Wing of the original
plaintiff who has analysed the product of the original defendants, it
transpires that the original plaintiff has proved that the original
defendants have infringed the “process patent” granted to them.
We have also perused the examination-in-chief and cross-
examination of the said witness and found that nothing is coming
RFA(OS)(COMM) 41/2019 Page 11 of 19
out in favour of the original defendants from the same. On the
contrary it appears that the original defendants have confused,
“product” with “manufacturing process of the product”. In fact,
there is no cross-examination at all about the process for
manufacturing d-trans Allethrin, for which the patent was granted
to the original plaintiff. This aspect of the matter has also been
properly appreciated by the learned Single Judge while deciding
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CS (COMM) No. 201/2017 vide judgment and decree dated 14
August, 2019 and we see no reason to take any other view other
than that taken by the learned Single Judge. We are in full
agreement with the reasons given by the learned Single Judge that
upon appreciation of the evidence given by the original plaintiff,
the fact of infringement of the patent was proved.
(viii) The manufacturing process of d-trans Allethrin along with
different steps for manufacturing of the same, have been detailed
by the plaintiff and the same are as under:
“a) charging d-trans Ethyl chrysanthmate into a
reactor at a temperature of 5 to 10 degrees C
alongwith 75gms of Sodium Hydroxide, 154 gms of
water and 96 gms of Methyl Alcohol,
b) subjecting reactants for saponification and
distilled off methyl alcohol at atmospheric pressure of
4 kg,
c) cooling of contents at 20 degrees C and further
acidification with sulphuric acid wherein sodium
chrysanthmate is converted into d-trans crysathemic
acid,
d) adding 1.70 kgs quantity of petroleum ether
which forms two layers, petroleum layer containing
d-trans crysathemic acid and water layer with
dissolved sodium sulphate.
RFA(OS)(COMM) 41/2019 Page 12 of 19
e) allowing two layers to settle for 1 hour, water
layer is drained to effluent tank and d-trans
crysathemic acid remains in the reactor,
f) carrying distillation of d-trans crysathemic acid
at 20 degrees
g) treating d-trans crysathemic with 150 grams
thiunyl chloride, thus forming d-trans crysathemic
acid chloride which further is dissolved in N-H-
heptane solvent.
h) adding 540 grams d-allethrolne (72:21) 230
grams pyridine and 600 grams toluene with d-trans
chrysanthanic acid chloride in a reactor gradually
resulting to desired d-trans Allethrin.”
(ix) The aforesaid process is a patented process for manufacturing d-
trans Allethrin. Thus, out of several methods of manufacturing of
d-trans Allethrin, the one which has been invented by the original
plaintiff has been granted patent in their favour and that process
cannot be adopted by the original defendants without permission
of the original plaintiff. This aspect of the matter, in our view, has
been properly appreciated by the learned Single Judge.
(x) The golden thread running throughout the plaint and the oral and
documentary evidence produced by the original plaintiff is that
there is an infringement of the process patent by the original
defendants, thereby meaning that the innovated method of
manufacturing of d-trans Allethrin, for which the patent has been
granted to the original plaintiff, has been followed by the original
defendants without permission of the original plaintiff. This would
clearly tantamount to infringement of process patent of the original
plaintiff. Time and again, orders had been passed by the learned
Single Judge but “the adamant original defendants” had not
RFA(OS)(COMM) 41/2019 Page 13 of 19
disclosed the manufacturing process of d-trans Allethrin followed
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by them. For ready reference, the order dated 23 December,
2014 passed by the learned Single Judge in CS(COMM)
No.201/2017 is reproduced and the same reads as under:
"Let the written statement be filed by the defendants
within four weeks. Replication, if any, be filed within
two weeks thereafter.
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List on 23 February, 2015.
Learned counsel for the defendants is agreeable
that in the written statement, he will disclose the fact as
to whether the defendants have actually started
manufacturing of the impugned goods or not and in
case, the defendants have already started then he will
provide the details of the batch numbers."
(Emphasis supplied)
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(xi) Similarly, there is one more order dated 21 July, 2015 directing
the original defendants to disclose its process and the same reads
as under:
''Learned counsel for the plaintiff has pointed out that
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the order dated 23 February, 2015 where the
defendants agreed to disclose in their written statement
as to whether they have actually started manufacturing
of the impugned goods or not and in case they have
already started to do so, they will provide the details of
the batch numbers. Learned counsel for the defendants
have informed that they have not disclosed the said
information in their written statements. Let the
affidavit(s) be filed by the defendants in terms of the
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order dated 23 February, 2015 within two weeks from
today. In the said affidavit(s), they will also disclose the
process of their products in addition to the earlier
information.''
(Emphasis supplied)
(xii) Despite these orders passed by the learned Single Judge in
RFA(OS)(COMM) 41/2019 Page 14 of 19
CS(COMM) No.201/2017, the original defendants have not
disclosed their manufacturing process of d-trans Allethrin. Thus,
under Section 114 of the Indian Evidence Act, 1872, especially
under illustration (g), a negative inference can be drawn to the
effect that “had this manufacturing process been presented by the
original defendants, the case would have gone against the original
defendants”. Thus, it appears that the original defendants have
deliberately avoided complying with the orders passed by the
learned Single Judge in CS (COMM) No.201/2017 directing them
to disclose their (defendants) manufacturing process of d-trans
Allethrin.
(xiii) In fact, the original defendants have neither examined any witness,
nor have they disclosed their manufacturing process of d-trans
Allethrin before the Court in CS(COMM) No.201/2017, while
positive evidence in this regard had duly been given by the original
plaintiff, both oral as well as documentary, clearly narrating the
infringement of the process patent by the original defendants. A
conjoint reading of the evidences given by the plaintiff, especially
given by PW1 and the documents presented by the original
plaintiff which are Ex.PW1/1 to PW1/27, reveals that there is an
infringement of the process patent granted in favour of the original
plaintiff by the original defendants. The learned Single Judge has
in detail made an analysis of the evidence given by PW1 in
paragraph Nos.20, 21, 22, 23, 24 and 25 of the impugned
judgment.
(xiv) Counsel appearing for the appellants (original defendants) have
submitted that their appeal is pending before IPAB against the
RFA(OS)(COMM) 41/2019 Page 15 of 19
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order passed by Patent Office dated 16 February, 2016. The
pendency of this appeal is of no help to these appellants mainly for
the reason that as on today there is a valid and subsisting “process
patent” in favour of the original plaintiff. Pre-grant Opposition,
under Section 25(1) of the 1970, Act as well as post grant
oppositions, under Section 25(2) of the 1970, Act have already
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been dismissed. An earlier order of the IPAB dated 18 August,
2014 is also in favour of the original plaintiff. Moreover, as stated
hereinabove, the registration of the product under the 1968, Act is
entirely different to the grant of patent for the process of
manufacturing of the product. The infringement of the patent has
been proved by the plaintiff with the help of oral as well as
documentary evidence in favour of the defendants in the cross-
examination of PW1. Looking to the cross-examination, it appears
that the defendants have done a confused examination. The said
confusion is about the registration of the product and not in respect
of the patent for the innovative methodology of manufacturing the
product. Thus, while d-trans Allethrin can be manufactured by
hundreds of manufacturers, they cannot follow the innovative
method of manufacturing for which patent has been granted to the
original plaintiff. This aspect of the matter has been properly
appreciated while deciding CS (COMM) No.201/2017 vide
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judgment and decree dated 14 August, 2019. We are in full
agreement with the reasons given by the learned Single Judge.
(xv) Much has been argued out by the learned counsel for defendant
that they have already disclosed the process of manufacturing
before the concerned officers under the 1968, Act. Looking to
RFA(OS)(COMM) 41/2019 Page 16 of 19
Section 30 of the 1970, Act even if such a disclosure has been
made by the original defendants, the same is not a disclosure to the
public at large. In fact, Section 30 of the 1970, Act is pari materia
with Section 26 of Patents and Designs Act, 1911, which has been
considered by the Bombay High Court in Communications
Component Antenna Inc. vs. ACE Technologies Corp. and Ors.,
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CS (COMM) 1222/2018, decided on 12 July, 2019, it has been
held as under:
"64. It was quite convenient and easy for the
Defendants to produce the beam patterns of their
antenna to argue that they do not infringe the patent of
the Plaintiff. The bare denial being given shows that
the Defendants have deliberately chosen not to
produce the beam patterns. In any event, the claims of
the invention, and the beam patterns attached in the
patent specification, show that the beam patterns need
not be identical to the drawings accompanying the
specification. Minor variations would not obviate
infringement. Equivalence would also apply. The
preferred embodiments of an invention are what they
say, i.e., they are only the "preferred" embodiments.
They are not the only embodiments. The claims are
broader than the preferred embodiments and have to
be read as such.
65. The technical opinion produced by the Defendants
seeks to limit the Plaintiffs patent to the beam patterns
contained in paragraph 28 of the plaint, which it
cannot do. The Defendants have not produced any
documents to show that they have followed any other
invention or any other prior art document, in the
construction of their antenna. The withholding of beam
patterns, by the Defendants, leads this Court to draw
an adverse inference against the Defendants, as the
Defendants have withheld and not disclosed the most
RFA(OS)(COMM) 41/2019 Page 17 of 19
crucial aspect of this case i.e., the beam patterns of
their antennae.
66. In a patent infringement action, once the Plaintiff,
prima facie establishes infringement, the onus shifts on
the Defendants, to disprove the same. The complete
silence by the Defendants shows that there is, in fact,
withholding of relevant and crucial information from
the court. During the course of arguments, since the
beam patterns were not produced on record, it was put
to the Defendants if the antenna could be made
available for inspection by a scientific expert
appointed by the Court, to which no positive response
was elucidated by the Defendants. A perusal of the
claims, complete specification, and the beam patterns
read with the two reports by the experts, placed on
record by both parties, clearly establishes
infringement. The Defendants' expert has not dealt with
the issues raised head on in respect of the beam
patterns, but has sought to deflect the issue. Thus, at
this stage the Court has no option but to draw an
adverse inference against the Defendants."
(xvi) In view of the aforesaid decision also, there is no substance in the
contention of the original defendants that the process for
manufacturing d-trans Allethrin was known to the public at large
because of its registration under Sections 9(3) and/or 9(4) of 1968,
Act. In fact, there is nothing under the 1968, Act which requires
the applicant to disclose the manufacturing process in detail, like
the requirement under the 1970, Act. We have perused Form-1
under the First Schedule of the Insecticides Rules, 1971 enacted
under the 1968, Act which does not require the disclosure of the
process of manufacturing of the product. Nonetheless, even if the
original defendants had disclosed the manufacturing process, it
does not tantamount to the manufacturing process being disclosed
RFA(OS)(COMM) 41/2019 Page 18 of 19
to the whole world. In the light of Section 30 of the Patents Act,
as also Section 26 of Patents and Designs Act, 1911, neither the
original plaintiff nor the original defendants were required to
disclose the method of manufacturing for the registration of their
product under the 1968, Act. This aspect of the matter has been
properly appreciated by the learned Single Judge while deciding
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the CS(COMM) No.201/2017 vide judgment and decree dated 14
August, 2019 especially in paragraph No.26 of the judgment.
(xvii) Thus, there is no substance in this Regular First Appeal and the
same is hereby dismissed.
C.M. Appls. No. 44547-48/2019
6. In view of the final order passed in RFA (OS)(COMM) No.41/2019,
these applications stand disposed of.
CHIEF JUSTICE
REKHA PALLI, J
OCTOBER 11, 2019
ns
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