Ram Sahai v. Angnoo

1. The plaintiff carries on the manufacture of iron fences at Nagpur. On the 2nd October 1917 he got two designs of iron fences registered under Section 43 of Act II of 1911. His complaint is that the defendant has imitated those designs and has been manufacturing and selling fences of a similar kind at Farrukhabad. He sued him accordingly for damages and for an injunction to restrain the defendant from imitating his registered designs.

2. The defence was that the designs were in common use before they were registered by the plaintiff and that the plaintiff was not entitled to any protection.

3. The Courts below found in favour of the defendant and dismissed the claim.

4. It is clear from the designs on the record and from the evidence, which was adduced in the trial Court, that there was nothing particularly new or original in the two designs which the plaintiff got registered. One of these designs had been in use at Farrukhabad from several years previous. Mulchand, a relation of the plaintiff, was manufacturing iron fences of that design from more than 15 or 16 years prior to the registration of the patent; and several persons depose that they had bought iron fences of that design from Mulchand 10 or 12 years prior to the suit. The other design is much simpler in character and merely another enlargement of one portion of the former. There is no originality about it. Section 43 of Act II of 1911 says that the controller may allow a person, claiming to be the proprietor of any new or original design, not previously published in British India, to register the same. But no such registration is effective, unless the design or configuration, sought to be protected, is new and original and not of a pre-existing common type. An “Invention” has been defined to mean any manner of new manufacture and includes an improvement; but every improvement need not be a new invention. Section 38 lays down that an invention shall not be deemed to be a new invention, if it was before the date of the application for a patent thereon publicly used in any part of British India or made publicly known in any part thereof, unless such public knowledge was derived by fraud and the public user was not acquiesced in for a period of more than six months. In the present case the evidence which was believed by both the Courts below clearly indicated that the designs in question were in use at Farrukhabad from long before the date when the registration of the patent was applied for by the plaintiff and it is not possible therefore to say that those designs were new or original and the plaintiff was entitled to the protection which he seeks. In the Elgin Mills Co. v. The Muir Mills Co. (1) it was held that a combination of materials would not be entitled to protection unless it was a combination of a character which involved the exercise of any special inventive power or had some originality about it. The two designs in the present instance were not of that character and the plaintiff was not entitled to the protection which he claimed under the Act. The Courts below were therefore justified in refusing to grant the injunction asked for. We dismiss the appeal accordingly with costs including fees in this Court on the higher scale.

5. Appeal dismissed.