C.M. No.1 of 2005 The plaintiffs through the instant application (C.M. No.1 of 2005), moved under Order XXXIX, rules 1 and 2, read with section 151, C.P.C.. seek as an interim measure the restraint order against the defendants from manufacturing, importing, launching or offering for sale, their disputed float sheet glass products.
2. Case of the plaintiffs/applicants, as asserted in the plaint, is that plaintiffs, being successful businessm en. have established two sheet glass manufacturing units with production capacity of 25,000 tons of sheet glass per year, besides a gelatin plant having production capacity of 3000 tons per annum. It is claimed that first plaintiffs have developed and created new and novel process for sheet glass products through "Float Glass Technology". This invention is result of research conducted by the plaintiff No.1, who got the "Float Glass Technology" registered in his name under Patents and Designs Act, 1911 as Patent No.133253 under the title "A process for the production of sheet glass". Patent No.133253 was granted by Controller of Patents and Designs. The acceptance of application was advertised for possible opposition in the Gazette of Pakistan Part-V and the claims as well as specification were laid open for public inspection. None came forward to oppose the patent and as such it was sealed on 16-12-1993. The patent is valid with full force and renewal fee is being paid regularly. Plaintiff No.2 is licensee vide License Agreement dated 10-1- 1994. According to the plaintiffs, it is their right to claim exclusive privilege of making, selling and using the invention, throughout Pakistan, under the provisions of section 12(1) of Patents and Designs Act, 1911. This right/privilege, for exclusive use of invention also vests in the plaintiffs, by virtue of the provisions of section 30 of the Patents Ordinance, 2000. The defendants being business competitors of sheet glass are now committing infringement of plaintiffs patent/process, by establishing a float glass manufacturing unit. The instant suit of permanent injunction is instituted against the counterfeiting and infringement of Patent No.133253, of plaintiff No.1.
3. The case of defendant, on the other hand as envisaged in the written statement, is that Patent No.133253 has been obtained by fraud and misrepresentation, which is u rider challenge in suit titled "Messrs A.R. Rehman v. Khawaj ' hir Jamal". Float Glass Technology is not a new technology a nd the plaintiffs are not its inventors. Patent No.133253 is an exact copy of Pilkington U.K. Patent No.769692 dated 13-3-1957. The patent of plaintiffs lacks the element of novelty and Float Glass process is licensed to 35-companies in 29 countries of the world and as such no proprietary rights accrue under Patent No.133253. The defendants have lodged counter-claim and sought revocation of Patent No.133253.
4. Learned counsel for applicants/plaintiffs has contended that patent of the applicants was sealed under section 10 of Patents and Desigers Act, 1911, on 16-12-1993 and the same is CLD valid until 15-12-2009. The applicant/plaintiff No.1, by virtue of section 12(1) of the Act 1911, had been conferred exclusive privilege of making, using and selling the invention throughout Pakistan. The rights conferred under section 12(1) of Act, 1911 are now available to the applicants under section 30 of Patents Ordinance, 2000. Learned counsel has referred to the case of "Jamshed Aslam Khan v.
Mrs. Azra Jawed and 2 others" 1995 CLC 436 to contend that exclusive right once granted, holds the field until it is cancelled or revoked. He added that decision reported as 1995 CLC 436 (supra) of learned Judge in Chambers was upheld by a learned Division Bench in the case reported as "Azra Jawed and another v. Jamshed Aslam Khan 1996 MLD 1203. It was then contended by the learned counsel that subsistence/registration of a right, by itself establishes a prima facie case, in favour of patentee. Learned counsel, in this respect, finds support from the dictum of law laid down in the case of "Mere & Co. Ing. and others v. Hilton Pharma (Pvt.) Ltd." 2003 CLD 407. He placed reliance on "Standard Finis Oil Company and others v. National Detergents Ltd. and 2 others" 1984 CLC 781 to contend that once a patent or trade mark is registered according to law, as a matter of public policy cannot be uprooted. While dealing with the questions of irreparable loss and balance of convenience, learned counsel has referred to the cases of "Silver Cotton Textile Mills Ltd. v. Bawany Violin Textile Mills Ltd." PLD 1963 (W.P.) Karachi 79 and "Glaxo Group Ltd. and 2 others v. Evron (Private) Ltd." 1992 CLC 2382. Learned counsel contended further that the onus lies on the defendants to prove that the patent lacks the element of novelty and in this respect, he has referred to a case from Indian jurisdiction, "F.H. and B. Corporation v. Unichem Laboratories" AIR 1969 Bombay 255. He also stated that novelty has to be looked within the territory of Pakistan only, for the provisions restrict the meaning of invention or novelty to the extent of Pakistan. It was then argued that the application of the plaintiffs at the time of the grant of the patent was offered for objection through publication in official Gazette and defendant being the business firm in relevant field has not lodged any opposition, therefore, the respondent is estopped from raising the plea of lack of novelty and misrepresentation. Learned counsel for the applicants, while submitting so, found support from the cases reported as "Ardeshir Cowasjee etc. v. Messrs Multiline Associates"
PLD 1993 Karachi 237; Fawad Fiaz v. General Manager (Zonal Head) and others 1999 YLR 2123 and "Federal Mogul Products v. Taha Industries and 2 others" 2005 CLD 802.
5. Learned counsel for the defendant, on the other hand, has argued that the patent secured by the plaintiffs is by fraud and misrepresentation and registration of such patent doe's not carry any weight in the eyes of law, as fraud vitiates the most solemn proceedings. Adds that the plaintiffs were neither the developers nor creators of float glass technology, thus the invention, claimed by plaintiff No.1 is neither novel nor new. The plaintiffs being already aware of the technology, got it patented in their favour and such grant of patent is liable to be revoked. He stressed that the claimed technology is known to the world since 1960 and more than 200 Float Glass Lines are producing float glass, globally in 49 different countries. He further added that the process for revocation of patent of the plaintiffs has already been initiated by the Ministry of Industries.
Learned counsel stated that invention/property of Pilkington, on expiry of 20-years has become a public property and the same can be adopted without any restraint by anyone and mere registration of alleged patent is hardly a ground for claiming a prima facie case. He, in support of his contentions, has placed reliance on "Taj-ud-Din v. Haji Mushtaq and others" 1985 CLC 2182; "Messrs D. Mont Blanc Industry Regd. v. Abdul Aziz" 1980 CLC 396; "Lallu Bhai Chakubhai Jariwala v.
Chimanlal Chunilal and Company" AIR 1936 Born 99 and "Manleka Thevar v. Messrs Star Plough Work Melur" AIR 1965 Mad 327. It was further contended by the learned counsel that the product in question was already in the market, through imports from various countries and cannot be patented in favour of the plaintiffs. Such patent can be revoked under section 40 of the Act, 1911. His next contention was that the defendant has established the project with an investment of Rs.1 billion and public funds through loan advanced by various banks and DFIs to the tune of Rs.87,00,00,000 (Rupees eighty seven crore only) are also involved. The project is nearly completed and is capable of production within a few days. The defendant in order to reach the optimum level of temperature (3200-C) is paying, at least Rs.8,00,000 (Rupees eight lac) per day as Sui Gas flat rates, while the furnace has touched 1380-C. Learned counsel for the defendant has referred to "Messrs Gorey International through Proprietor Feroza Khatoon v. Colgate Palmolive Pakistan" 2000 MLD 8 to contend that the plaintiff has already claimed damages in view whereof the question of irreparable loss does not arise. The plaintiff has instituted the suit after a delay of 2 years which itself is sufficient ground for refusal of the relief of injunction and in. this respect, relied upon "Karachi Transport Corporation v. Qaiser Pit and another" 2000 CLC 121.
6. Heard learned counsel for the parties and perused the record.
7. The plaintiffs' patent was registered under Patents and Designs Act, 1911, therefore, the provisions attracted to the instant proposition are Patents and Designs Act, 1911. It is necessary to first analyze the scheme and process of registration under the Patents and Designs Act, 1911. The application for the grant of a patent is required to be filed on a prescribed form under section 3 of the Act, 1911. It is essential for the applicant to file the declaration that applicant is in possession of an invention. The Controller, on receipt of application, referred the matter to Examiner for his report under section 5 of the Act. The Examiner has to examine that the invention is properly described and ascertained in complete specification, the specification and drawings have been prepared in a prescribed manner, the title does sufficiently indicate the subject-matter of the invention and that the invention claimed is, prima facie, a new manufacture or improvement and if he is satisfied that these requirements are met, the application is accepted. The acceptance of application is advertised with specification, claims and drawings and is made open to the inspection of public.
The patent, at this juncture, becomes a public record and any person can lodge opposition to the grant of patent by giving notice at the patent office by paying prescribed fee, within a period of four months from the date of advertisement. Section 9 prescribes the grounds on which a patent can be opposed. Provisions of this section provide further that patent cannot be opposed on any other ground. In the instant case the attack on the invention was available under sub-clauses (c) and (d) of section 9 which provide that the nature of invention or manner it is to be performed is not sufficiently and fairly described and the invention has been publicly used in any part of Pakistan or the same is publicly known in any part of Pakistan. The patent is granted and sealed, on the basis of the report of the Examiner and also for the reason that the same is not opposed in response to advertisement under section 10 of the Act, 1911. The patent sealed confers on the patentee the exclusive privilege of making, selling and using the invention throughout Pakistan by virtue of section 12 of the Act. The remedy to a patentee to file a suit for infringement or counterfeiting the patent was made available under the provisions of section 29 of the Act, 1911.
Such right is now provided under section 60 of the Patents Ordinance, 2000. Paramount consideration, to resolve the issues or controversy between the parties, is required to be given to scheme and policy of the statute. The question of grant or refusal of the interim relief, has to be adjudged according to the policy of the statute. The mischief against the rights, granted by the statute, is to be redressed, rather suppressed. The grant of interim relief in the instant matter cannot be weighed on monetary balance as against the statutory balance. When right or liability is created by a statute which also provides the special remedy for enforcing it, the remedy provided by that statute must be followed.
8. Learned counsel for the defendant has resisted the patent of the plaintiff on the ground that it lacks the element of novelty and invention. He relied upon various judgments of the Courts from Pakistan as well as from the Indian jurisdiction wherein the issue of invention and novelty was dealt wit h as under:-
(i) Process of manufacture already known cannot be led an invention and no patent can be granted or alto to be continued 1980 CLC 396.
(ii) It is important to bear in mind that in order o be patentable an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement; and must independently satisfy the test of invention or an "inventive step". To be patentable, the improvement or the combination must produce a new cheaper article than before. The combination of old known integers may be so combined that by their working inter-relation they produce a new process or improved result. Mere collection of more than one integers or things not involving the exercise of any inventive faculty, does not qualify for the grant of a patent. Patent is granted only for the invention, which is new, and essential for its validity is that it is inventor's own discovery as opposed to mere verification of what was already known before the date of the patent unlike the Patents Act, 1970, the Act of 1911 does not specify of being useful. The invention must not be workshop improvement and the test of invention is that an inventive step and must produce a new step. "Messrs Bishwanth Prasad Radhey Shayam v. Messrs Hundustan Metal Industries" AIR 1982 SC 1444.
(iii)The two features necessary to the validity of a pate re novelty and utility but the real test is novelty of the invention. Novelty is the essential for, otherwise there would no benefit given to the public and consequently no consideration moving from the patentee AIR 1936 Bomb.99.
(iv) He referred to "Patents in Chemistry and Biotechnology" by Philip W. Grubb European Patent Attorney:---
(a) "The first and clearest requirement is that nothing can be patentable which is not new"
(b) Another para. from the same book was referred: "The concept of novelty is so basic to patentability, it may seem odd that there are several different concepts of novelty which have been applied to inventions. The most straightforward is that of 'absolute novelty' applied by the EPC and by the British Patents Act, 1977; that is, that an invention is new if it is not part of the 'state of the art', the state of the art being defined as everything that was available to the public by written or oral publication, use'or any other way, in any country in the world, before the priority date of the invention."
9. "Novelty and invention" in the purview of patent law, dealt with by Courts from the other angle, is as under:--
(i) Contribution of old material in new form can be patented as held in "Lakhpat Rai and others v.
Sri Kishan Das AIR 1918 Allahbad 24.
(ii) A sufficient element of Novelty, may be a small step but it is a step forward and that is all that is required so far subject-matter is concerned.
Manufacture comprehends not only production but also the mode and methods of producing them, so, that a new process or an improvement on an old process will be manufacture within the meaning of Act. Applying these definitions it is difficult to see why the plaintiffs process cannot be called an invention "Lallu Bhai Chakubhai Jarvivala v. Shamaldas Sankalchand Shah" AIR 1934 Bombay 407.
Reverting back to the case law referred and relied upon by the defendants, it may be observed that there is no cavil to the principle laid down in these cases, yet the question of novelty and invention has to be seen and judged, keeping in view the provisions of the statute itself, where the invention is defined in section 2(i) of Patent Ordinance, 2000 as "the invention" means any new and useful product or process in any field of technology; and includes any new and useful improvement of, either of them. Section 9(10)(d) of Act, 1911 provided the attack on invention if such patent has been granted in respect of invention which has been used in any part of Pakistan or has been made publicly known in Pakistan. Section 9 has provided opposition on a patent on five (5) grounds only. It has been specifically mentioned at the end of section 9(i) "but no other grounds".
The language employed in section 9 makes it manifestly clear that a patent can be challenged only on grounds (a) to (e) of section 9(i) of Act, 1911.
It is manifestly clear from above provisions of law that words used "invention", "publicly use" or "publicly known" are restricted to Pakistan only. The rights under the patent law are territorial and such rights will extend within the boundaries of a country. The Honourable High Court of Sindh in the case of "Merc & Co. Inc. and others v. Hilton Pharma (Pvt.) Ltd. 2003 CLD 407 has dealt with this question as under:-- "If the assertions of the defendant with reference to seven different previously known processes to produce "Alendronate" are carefully analyzed then it will be seen that the allegations of prior use and knowledge are mainly with reference to foreign markets-though under the Act of 1911 such use relates to only prior use in Pakistan (see form 1-A of Act of 1911)."
Plea was raised in another case, that the patent was registered and granted to a Hungarian Company and the basic drug is cimetidine and its modifications are cimetidine-A cimetidine-B, cimetidine-C and cimetidine-H, which are patented in favour of the patentee in Pakistan. The Court refused to entertain this objection in the case of "Smith Kline and French Laboratories Ltd. and another v. Ferozesons Laboratories Ltd. and another 1992 MLD 2226.
The patent has been defined by P. Narayanan in his Book Intellectual Property Law 3rd Edition:-- "A patent is a monopoly right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. It consists of an exclusive right to manufacture the new article invented or manufacture an article according to the invented process for a limited period. After the expiry of the duration of patent, anybody can make use of the invention.
A patent being a creation of statute is territorial in extent. A patent granted in one State cannot be enforced in another State unless the invention concerned is also patented in that State."
10. The patent laws being territorial in nature are limited to the boundaries of the country. Moreso, Pakistan is not signatory of International Convention on grant of patent. The rights pertaining to trade mark, as against patent, are recognized by the Courts of law . and cross-border usage and infringement can be entertained. Pakistan being common law country recognizes common law rights and the concept of Trade Mark Law as embodied in Trade Mark Ordinance, 2001 is on these principles. It follows from the above discussion that the meanings of terms, novelty and invention including improvement, have to be confined and restricted to the territories of Pakistan.
11. Now I advert to the proposition in hand. The patent of the plaintiffs is granted to the plaintiffs since 1993 and has remained unchallenged throughout this period until the time the defendant has filed the counter-claim. The grant of the patent, and sealing thereof was a process concluded after the compliance of all the formalities and the same was published in the official Gazette. No objections from any corner, local or foreign, after the publication of the advertisements, were filed.
The plaintiff has thus for the purpose,of temporary injunction, so long the registration in its name is not cancelled, made a prima facie case in his favour. If any case law is needed in this respect, reference can be made to "'Sandoz Ltd. and another v. Pakistan Pharmaceutical Products Ltd. and another" 1987 CLC 1571; "Glaxo Group v. Pakistan Pharmaceutical Products" 1991 MLD 85; "Glaxo Group Ltd. v. Evron Pvt. Ltd." 1992 CLC 2382; "Smith Kline and French Laboratories Ltd. and another v.
Ferozesons Laboratories Ltd. and another" 1992 MLD 2226; "Azra Javed v. Jamshed Aslam Khan" 1996 MLD 1203; "Popular Food Industries y. Maaza International Company" 2004 CLD 1509; "Muhammad Jahangir v. Hassan Qaiser" 2004 CLD 516 and "Jamshed Alam Khan v. Azra Javed and 2 others" 1995 CLC 436. Besides the apex Court in the case of "Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant 1987 SCMR 1090 upheld the grant of interim injunction in favour of the appellant on the basis of the registration of Trade Mark in applicant's favour and laid down the law to the effect that on the basis of registration of a right under the law, prima facie case, balance of inconvenience and irreparable loss comes into play in favour of a party having a registered right.
12. The claim of damages by the plaintiff, by itself, has been held as no ground for refusing the temporary injunction in case of " Jamshed Alam Khan v. Mrs Azra Javed and 2 others" 1995 CLC 436.
The relevant part is reproduced as under:-- The balance of convenience would also lie in favour of the plaintiff because in case the contesting defendants are allowed to infringe his registered trade mark, It is the plaintiff who would suffer adversely as compared to the contesting defendants. The loss of reputation, goodwill and popularity of the product on the part of the plaintiff would be irreparable and cannot be measured in terms of coins. On the other hand, defendants Nos.1 and 2 have not been able to persuade me to discard the case made out by the plaintiff. Indeed they have not the Trade Mark Shahzadi as contested at the bar. For these reasons, I would grant this application and confirm the interim order of injunction passed on 27-1-1994."
13. The defendants have not specifically denied in written statement that the process of the plaintiff is not being infringed and the defendants have adopted another process, although during the course of arguments it was urged that different method was being adopted. The defendant has not produced the original invention of Pilkington or a certificate from him to prove that the patent of the plaintiff is an identical of Pilkington's invention. The defendants have not disclosed their process of manufacture of float glass in the written statement. Prima facie there is no evidence on record to prove that at the time of the grant of the patent, the float glass 'technology was publicly known in Pakistan and the product subject-matter of this technology was being imported in the country. The questions of balance of convenience and irreparable loss have already been considered by this Court in the case of "Telephone Soap v. Messrs Lever Brothers" 1994 CLC 2135, where the Court held that balance of convenience and irreparable loss in cases of intellectual property right, cannot be measured in terms of money. I further add that while deciding the cases pertaining to rights granted under statute the irreparable loss and balance of convenience has to be weighed and viewed, according to the policy of statute itself and the mischief designed to be suppressed. The defendant instead of seeking revocation of the patent, opted to establish its project and took risk. Law should take its own course instead of coming to the rescue of such party. Viewing and determining the questions of the prima facie case, irreparable loss and balance of convenience, on the basis of the pleadings of the parties and the material in support thereof at the time of institution of the suit and also at the time of filing of the written statement, I am of the view that the plaintiffs have succeeded to make out a case for interim relief.
14. Consequently the instant application is allowed and defendant is restrained, during the pendency of suit, from manufacturing, importing, launching or offering for sale, its disputed sheet glass products.
Needless to mention that the observations made hereinabove are inevitable but are tentative except legal proposition.