The brief facts of the case are as follows. The appellant filed the suit O.S No. 3 of 1964 on the file of the District Judge, Mathurai under S. 29 of the Patents and Designs Act, against the respondent for a permanent injunction restraining the respondent from manufacturing and selling certain pattern of ploughs on the ground that the respondent's conduct was an infringment of the plaintiff's patent. The plaintiff obtained an interim injunction in I.A 181 of 1964 but on an application filed by the defendant-respondent in I.A 182 of 1964 the interim injunction was vacated. The plaintiff has preferred the above appeals complaining that the learned District Judge should have granted the interim injunction pending disposal of the suit.
The plaintiff is a manufacturer and dealer engaged in the sale of ploughs and plough shares known as “Bose Ploughs” or “Plough Shares” and the plaintiff's case is that in the course of his business he has been experimenting and inventing new patterns of ploughs as a result of his inventive genius and prolonged research and that he obtained a patent on 12th October, 1960, in respect of a particular pattern of plough, having a special twist distinguishing his pattern from the other ploughs in the market. The plaintiff's case was that he commenced production and sale of this particnlar type of plough from October, 1962, that about March, 1964, the defendant slavishly imitated the plaintiff's pattern by manufacturing ploughs and selling the same in the market.
The defendant resisted the claim on the ground that the plaintiff cannot claim any inventive genius or special research in the particular patten of plough which he was manufacturing having regard to the prior public knowledge and obviousness arising from the manufacture and sale of ploughs long before the controversy arose. The defendant claimed that he has been manufacturing ploughs of various patterns from the year 1958, and that the particular pattern “ No. 99 Star Master “ which is complained of as an infringement is not any imitation of the plaintiff's pattern, but it is as a result of the defendant's invention and improvement upon the patterns of ploughs which he had been manufacturing and selling.
In connecting with the interim injunction application a Commissioner was appointed to inspect the premises of the defendant and submit a report. The defendant appears to have stocked his ploughs in Door No. 373/2, as well as Door Nos. 371 to 375. Some point was made by learned Counsel for the appellant before me that the 99 Star Master ploughs were not shown to the Commissioner ‘ at the time of his first report and inspection. On scrutiny of the records I find nothing turns upon this as the complication arose on account of the fact that the Commissioner inspected only No. 373/2 and not the other door Numbers. Even as early as 5th May, 1964, the defendant has brought to the notice of the Commissioner that by the end of 30th April, 1964, he had manufactured a total number of 1406 ploughs of “ 99 Star Master “ brand, has sold 660 and had a balance of 746. In view of this it is clear that the defendant has been manufacturing and selling in large numbers Start Master Ploughs 99.
Principles regulating the grant of an interim injunction in a suit complaining of infringement of a patent are fairly well settled. The plaintiff must make out a strong prima facie case of the issue of a temporary injunction. An interim injunction will not be granted if the patent which has been obtained by the plaintiff is a recent one and there is a serious controversy about the validity of the grant of the grant of the patent itself. In other wcrds, if from the objections raised by the defendant it is clear that a serious controversy exists as to whether or not the invention claimed by the plaintiff is a new one or a new manufacture or whether or not the invention involves any new inventive skill having regard to what was known or used prior to the date of the patent, Courts will not grant an interim injunction restraining the defendant from pursuing his normal business activity. An interim injunction will not be granted if the defendant disputes the validity of the grant. The facts of the instant case disclose a bona fide triable issue as regards the inventive genius claimed by the plaintiff. If the patent is new and its validity has not been established in a judicial proceeding till then, and if it is endeavoured to be shown that the patent ought not to have been granted under the provisions of S. 26 of the Patents and Designs Act of 1911, the Court will not interfere by issuing a temporary injunction. Vide kerr on Injunction, 6th Edition, page 320. In the instant case every circumstance that has been made out is definitely against the grant of a temporary injunction. The plaintiff has not made out the important condition of a strong prima Jacie case of a sufficient actual user of his patent. Even though the defendant raised this particular objection the plaintiff has not placed any prima facie material or any evidence by production of account books, bill books etc., to show the date of his commencement of the production and the nature of the sales extensive or otherwise. On his own showing he commenced production only in October, 1962, and the suit is filed in 1964 April. Yet no materials have been placed.
Secondly, the patent is a very recent one and I find that the decisions have uniformly taken the view that any patent which is lese than six years old is regarded as a recent one. The statement of the law in Terrel on Patent, 9th Edition, pages 318-320 shows that a patentee should show undisturbed, possession of the enjoyment of the patent at least for a period of six years before the controversy arose. In Boots Pure Drug & Co., v. May & Baker(1), this rule that there should be proof of actual user of the patent for more than six years was applied in India. Thirdly, there is also a serious controversy about the validity of the grant of the patent touching the originalisy or the inventive genius of the plaintiff and as to how far the prior knowledge holding the field would disentitle the plaintiff to the grant of the patent. The defendant is certainly not a new entrant in the field but he has himself been a dealer, manufacturer and seller of ploughs of various patterns. For all these reasons, I entirely agree with the order of the learned District Judge holding that the plaintiff has not made out any case for the grant of an interim injunction.
The appeals are therefore dismissed with costs. The direction passed by the learned District Judge directing the defendant to maintain separate accounts of their sales with liability to pay damages to the plaintiff in case the plaintiff succeeds would stand.
It is needless to observe that where the main issue to be decided in the stage of the interim injunction application is the same as the one to be tried in the suit the best course will be to expedite the trial of the suit, so that neither party would be put to any irreparable damage or loss or predudice. I therefore direct the District Judge to dispose of the suit as expeditiously as possible preferably before the end of (January) 1965, of course after giving preference to the Sessions Cases.
V.C.S