' AFTAB HUSSAIN, J.-This order will dispose of Civil Misc. No, 76/L of 1972 and Civil Original No, 25 of 1972 since they involve common questions of law and facts arising between the same parties. For facility of reference the Mont Blanc Industries shall be called 'plaintiff' and Abdul Aziz shall be referred to as 'defendant'.
2. The facts are that an application for grant of patent of their perforating power machine was filed by Fazal Karim and his son Muhammad Siddique Nadeem both carrying on business under the name and style of "THE MONT BLANC INDUSTRY REGISTERED" in the Office of the Controller of Patent and Designs, Government of Pakistan' on 10th October, 1969. This petition was accepted on the 11th May, 1971, after rejection of the defendant's objection and the order of grant of patent No, 121506 was thereafter gazetted in the Gazette of Pakistan dated 28th May, 1971. On the 21st February, 1972, a suit for permanent injunction was filed by the registered firm "THE MONT BLANC INDUSTRY REGISTERED" Gujranwala, against Abdul Aziz defendant claiming that he had imitated the said machine, had manufactured a similar machine and had started selling the goods produced by his machine as the goods of the plaintiff thus causing him considerable loss and damage; and praying (1) for handing over the machine to the plaintiff, (2) for account of profits, (3) for awarding a decree for restraining the defendant from the use of the said patented machine, (4) from passing off the produce of the said patent, and (5) for a temporary injunction in the like terms pending the final disposal of the suit. Abdul Aziz defendant filed Civil Misc. No, 76/L of 1972 on 29th May, 1972, purporting to be under section 51-A read with Rules 81 and 82 of the Patent and Designs Act, 1911, for cancellation of the said patent No, 121506 on the ground that the manufacture of the plaintiff's machine was not an invention.
3. In view of the pendency of this petition the plaintiff's suit was transferred to the High Court on the 1st October, 1972, under the proviso to subsection (1) of section 29 of the Patent and Designs Act, 1911. Subsequently, by an order dated the 23rd February, 1976, both the matters were consolidated and it was directed that the evidence and other proceedings shall be taken in Civil Misc. No, 76/L of 1972.
4. The plaintiff's case is based upon his being an inventor of the patented machine while the defendant's case is that it is he who had prepared and operated his perforating power machine earlier but neither his machine nor the machine of the plaintiff was an invention within the meaning of the Act of 1911.
5. The following issues were framed : (1) Whether the petition discloses grounds given in section 26 of the Patent and Design Act for the revocation of the patent ?
(2) Whether the machine of respondent No, 1 is invention under the Patent and Design Act, 1911 ?
(3) Whether the plaintiff, i. e. The Mont Blanc Industries (Regd.) was inventor of the Perforating Power Machine ?
(4) Whether the patent can be revoked on any of the grounds given in the petition for revocation and the written statement of the suit ?
(5) Has the defendant infringed the patent of the plaintiff ?
(6) Has the defendant passed on his Perforating Power Machine as machine of the plaintiff ?
(7) Whether the plaintiff is entitled to any damages ? If so, to what amount
(8) Whether the defendant is entitled to special costs under section 35 A, C. P. C.
(9) Relief.
6. Three more points were raised in the written-statement to Civil Misc. No 76/L of 1972. They were firstly, that no petition for revocation of the registration of the patent could be made under section 51-A, secondly, that the petitioner had another remedy by way of appeal and thirdly, that the petition was barred by time. At the time of framing of issues the learned Counsel for the defendant conceded the first point and admitted that the case was governed by section 26 of the Act. He prayed that Civil Misc. No 76/L of 1972 may be treated to be a petition under that section. By order dated the 23rd February, 1976, it was directed that the petition shall be considered to be one under section 26. It was also held that the plaintiff could not show any law under which the order of dismissal of objections of the defendant by the Controller of Patents and Designs may be appealable. Moreover, section 26 was not subject to the condition of exhausting alternative remedies. For this reason it was held in the same order that no issue arose on the second point.
Similarly, no issue was held to arise on the plea of limitation because no such period of limitation is provided in the Act. It may be stated that under section 29 (2) it is open to the defendant to plead grounds on which a patent may be revoked under section 26. In view of this the plea of limitation as regards the petition under section 26 is reduced to the position of an academic question. No issues were, therefore, framed on these three points.
7. On the 29th May, 1974, this Court passed an order of appointment of Dr. K. R. Uppal, Professor Mechanical Dapartment, Engineering University, Lahore, to ascertain "as to whether in his opinion the respondent can be said to be a new inventor of the machine in respect of which the patent was granted in his favour." Dr. Uppal submitted his report along with five affidavits of Abdul Latif son of Karam Bakhsh, Abdul Karim son of Muhammad Din, Muhammad Hafeez Zia son of Haji Muhammad Ali, Ch. Muhammad Iqbal son of Nawab Din, Muhammad Anwar son of Hidayat Ullah and Muhammad Akram son of Muhammad Shafi. All of whom deposed that the perforating power machine of the defendant was manufactured in the year 1968, Except Abdul Latif all others also swore that the machine of the plaintiff was made in the year 1970. The last named four persons also swore that they had taken part in the compromise talk between the parties. Dr. Uppal, however, held on the basis of his own comparison of the foreign machines and the machine of the plaintiff that the latter was a new invention. The defendant filed objection against the report. The same can be summed up as follows :-
(1) The Local Commissioner did not conduct any proceedings or inquiry in the presence of the parties despite the fact that the petitioner was always willing to participate in the proceedings.
(2) The affidavit filed on behalf of the plaintiff should not be considered to have any evidentiary value on account of the grounds given in paras. 2 and 3 of the objections.
(3) The Local Commissioner erred in failing to record the statements of the parties and the witnesses.
(4) The Local Commissioner erred in assuming jurisdiction in respect of the legal question whether in the circumstances of the case the manufacture of the machine amounted to an invention under subsection (8) of section 2 of the Patents and Designs Act, 1911.
(5) The report is misleading, collusive and one sided and the Local Commissioner appears to have been influenced by various extraneous matters.
8. A reply to these objections was filed on behalf of the plaintiff. Ultimately, on the 19th May, 1975, the parties agreed that Dr. Uppal may be examined as a Court witness in support of his report. Since Dr. Uppal was not available in Pakistan and was found to have left for abroad, his presence was not insisted upon in the interest of expeditious trial of the matter.
9. After going through the report, the objections and their reply and hearing both the learned Counsel, 1 found that the first and the third objections were of no avail since the parties had to be given full opportunity of producing their evidence before the Court. The third objection was held to be without merit because the Local Commissioner had not given any finding in regard to the above-mentioned affidavits nor had: he placed reliance upon them. It was further held that the affidavits would not be considered to have any evidentiary value for the determination of the question involved in this case. It may be stated at this stage that the defendant in his reply had said that he was prepared to produce all the deponents in Court for cross-examination. For this reason alone the affidavits as such could not be taken into consideration. As regards the point of similarity or distinction in the specifications of the foreign machines as well as of the Pakistani machines no objection was raised. In these circumstances, it was considered unnecessary to wait for the arrival of Dr. Uppal for recording his evidence and a finding to that effect was given on the 13th February, 1976.
10. The only point that impressed me at that stage was that the Local Commissioner's report was one-sided. He had considered the machine of the respondent to be an invention but had not given a similar finding regarding the machine of the petitioner. Secondly, I found that the point whether the report of the Local Commissioner that the Pakistani machine should be considered to be an invention within the meaning of the Patents and Designs Act was not the job of the Local Commissioner but could be determined only at the time of final disposal of the case. I, therefore, held that the report shall not be held as determinative of the question whether the machine used by the plaintiff or the defendant was at all an invention within the meaning of section 2 (8) of the Act of 1911. The report could be considered as determinative of only the difference in the specification between the machines manufactured abroad and the machine prepared in Pakistan by the parties. The objections were thus disposed of on the 31th February, 1976.
11. Before proceeding further to deal with the issues I may also notice that at least four of the persons who had given affidavits were examined as P. W. 2, P. W. 3, P. W. 6 and P. W.
7. They are Abdul Karim son of Muhammad Din P. W. 2, Muhammad Akram son of Muhammad Shaft P. W. 3, Muhammad Iqbal son of Nawab Din P. W. 6 and Muhammad Anwar, son of Hidayat Ullah P. W.
7. In their statements in Court P. W. 3, P. W. 6 and P. W. 7 did not state the dates of the manufacture of the machine of the plaintiff or the defendant. Muhammad Iqbal who had been categroical about the dates of the manufacture of both the machines stated in his cross-examination that he had seen only the machine of the plaintiff and not of the defendant.
12. A reference may also be made to two applications of the plaintiff for production of additional evidence. The plaintiff had in his reply to Civil Misc. No, 76/L of 1972, relied upon a letter purporting to have been signed by Abdul Aziz defendant and one other Abdul Aziz. The letter purports to be an admission of imitation by Abdul Aziz of the perforating power machine of the plaintiff. A photostat copy of this letter was put to the learned Counsel for the defendant on the 23rd February, 1976. He stated that the original of this document was a forgery. One reason which he gave in support of the statement was that Abdul Aziz had objected before the Controller of Patents and Designs to the machine being patented and as such there was no point in writing this letter on the 2nd September, 1969.
13. No effort was made on behalf of the plaintiff to prove this letter in his own evidence. He, however, submitted an application for additional evidence on the ground that the letter could not be proved on account of a mistake on the part of the plaintiff. He prayed that the postman who had served the registered letter may be summoned to prove the document and the specimen signatures of the defendant may be sent to the Handwriting Expert to verify whether the letter was written by the defendant to the plaintiff under his signature.
14. This application was dismissed on the 16th July, 1976, on the ground that there was no reason why proper steps to produce evidence to prove the above letter were not taken in time. Moreover, the Postman could only prove the delivery of envelope and not the letter itself, nor could he prove whether the letter delivered by him was in fact des-patched by the defendant. It was suggested that the remedy before the plaintiff was to put this letter in cross-examination to Abdul Aziz if he appeared as a witness. The letter was put to Abdul Aziz but he denied having written the same or having signed it.
15. Yet another application (C. M. 130/L-78) for permission to produce additional evidence to prove the same letter was submitted. In this petition a request was made to summon the Handwriting Expert, the Postman and FIR No, 116 of Police Station, Gujranwala City dated 14th June, 1969. This petition was dismissed on 28th February, 1979, on the ground that there was no reason to review the order dated the 16th July, 1976. It was reiterated that the Handwriting Expert could only compare the signature but he could not prove that the document in fact emanated from the defendant.
Similarly, the Postman could prove only service of envelope but not the letter. It was also pointed out that Muhammad Siddique Nadeem P. W. 8, partner of the firm, did not make any statement about the letter at any stage of the ' evidence. Similarly, the F. I. R. Also was not material to prove any compromise or the writing of this letter. It was held that in these circumstances no useful purpose was likely to be served by production of additional evidence.
16. Issues Nos. 1 and 4 : ' Section 26 of the Act of 1911, provides that a patent may be revoked inter alia on the ground-
(b) that the true and first inventor or his legal representative or assign was not the applicant or one of the applicants for the patent ; (c)
(d) that the invention was not, at the date of patent, a manner of new manufacture or improvement ; and
(e) that the invention does not involve any inventive step, having regard to what was known or used prior to the date of the patent.
' The petition is based on the ground that the perforating power machine of the plaintiff is not an invention and there are hundreds of similar machines which have been in use in Pakistan. The petition, therefore, amply discloses sufficient ground as required by section 26 of the Act for revocation of the patent. These issues are decided against the plaintiff.
17. Issue No, 6 : ' No evidence was led on this issue. It is accordingly decided against the plaintiff.
18. Issue No, 7 ' No evidence was led by the plaintiff on this issue. It is accordingly decided against him.
19. Issues Nos. 2, 3 and 5 : ' These issues can be taken up together since their decision is dependent upon the answer to the question whether the plaintiff's perforating power machine is an invention.
' The plaintiff's emphasis is mostly on producing evidence on the point that the plaintiff's machine was manufactured earlier while the defendant's similar machine is an imitation thereof and its manufacture followed after several years. The other point on which evidence has been led is that there had been some talk of compromise between the parties in which the defendant agreed with the finding of the conciliators that his machine was an imitation. The only evidence in regard to invention consists either of the statement of Mir Abdul Rashid P. W. 1 or Mr. Muhammad Osman, Controller of Patents and Designs, P. W.
4. No doubt P. W. 8, Muhammad Siddique Nadeem, partner of Mont Blanc Industries, appearing as his own witness, also made a statement in that respect.
' Before dealing with the evidence on invention, I may dispose of the evidence on the first two points.
' The purport of the evidence of Abdul Karim, P. W. 2, Muhammad Akram, P. W. 3, Muhammad Younis P. W. 5 and Muhammad Iqbal P. W. 6 about conciliation is that some amount was settled to be paid. P. W. 2 and P. W. 3 stated that the amount was R. 5,000. P. W. 5 and P. W. 6, on the other hand, stated that the amount was Rs, 8,500 P. W. 2 stated that Abdul Aziz had agreed to pay this amount since the demand of Fazal Karim was that he should not prepare the machine. P. W.
3. On the other hand, stated that the suggestion of intervener or mediator was that Abdul Aziz should be paid a sum of Rs, 8,000 and he should part with the machine. Same is the purport of the statements of P. W. 5 and P. W.
6. P. W. 5 stated that no School Teacher attended the compromise talk but it is proved by the evidence of P. W. 3 and P. W. 8 that P. W. 3 is a School Teacher. The evidence of these witnesses is self-contradictory. Apart from that it is also of no value since all the witnesses are agreed that the compromise talk broke down and these suggestions were not acceptable to the defendant. The defendant admits in his evidence about the compromise talk but since admittedly the conciliation talk was futile, nothing turns upon this evidence.
' P. W. 2, who stated that the machine of Abdul Karim was prepared in 1960 while a similar machine by Abdul Aziz was prepared in 1968, claimed to have seen both the machines. According to him, the machine of the plaintiff was 25 to 30 mounds in weight while the machine of Abdul Aziz is heavier being 35 to 40 maunds in weight. He further said that the machine of the plaintiff was run by a five horse power engine but he did not know anything about the power of the engine used for running the machine of Abdul Aziz. In fact he had not seen the machine of Abdul Aziz working. According to this witness, Muhammad Siddique had invented the machine, although, as will be seen, the case of the plaintiff is that the inventor was Fazal Karim his father. He also stated that the machine of Muhammad Siddique makes 12 holes at the most in one stroke but he could not say how many holes are made in a single stroke by the machine of Abdul Aziz. He conjectured that the number may be the same. When asked whether electric energy was consumed or the machine of the plaintiff was driven by a belt on the pully, he said that it was driven by a belt on the pulley. He did not say that it consumed the electric energy. Though he had stressed that he had not seen the machine of Abdul Aziz functioning, but in an answer to a question whether the metal sheet moves to and fro or the slide which punches the holes moves he said that it was the metal sheet which moved to and fro. He then stated that he did not know whether in the machine of Muhammad Siddique the metal sheet remained stationary and it was the slide which moved to punch the holes in it. He admitted that the parties did not deal in machines but only prepared the perforated material which is purchased by the customers. He further admitted that he was involved in a theft case but he denied that he was released through the intervention of Muhammad Siddique. When asked how many years have elapsed since 1960, he said on the 24th May, 1976, that twelve or thirteen years had elapsed.
' This witness does not appear to have any knowledge how the machines of the parties function. He claims to have seen both the machines and states that one is an imitation of the other and yet he could not say whether in the machine of Muhammad Siddique the metal sheet remained stationary and it was the slide which moved to punch the holes in it, although the plaintiff's case is that the slide does not move in this ,manner ; it is the table which moves. He has fixed the time of preparation of both the machines but no reliance can be placed upon this part of the statement since he is illiterate and could not correctly give the time which elapsed since 1960. He is the brother of Fazal Karim, as stated by P. W.
8. No reliance can be placed upon his evidence.
' As stated earlier, P. W. 3 Muhammad Akram had seen the machine of Hail Fazal Karim only though he gave an affidavit in support of the plaintiff regarding the dates of manufacture of both the machines. Similarly, P. W. 5, who has given a similar affidavit, confined his statement only to the conciliation proceedings. P. W. 6 Muhammad 1qbal, who sells locks and does not claim to have any knowledge of machinery in cross-examination stated that the machine was invented by Fazal Karim about 15 years ago. According to him, before this machine was invented the metal sheets were punched either by hand or by machines worked by hand (hand press). He had never seen the machine of the same type as that of Fazal Karim. This witness and P. W. 3 hail from the same Mohallah as the plaintiff. The evidence is clearly interested and cannot be relied upon. Moreover, the evidence of Muhammad Iqbal who is a vendor of locks is of no value on the question of invention.
' P. W. 4 is the Controller of Patents and Designs who has granted the patent. It is unnecessary to refer to his statement in any detail since it appears that no investigation worth the name was carried on in his office to determine whether the plaintiff was an inventor in the sense that he was the first inventor and whether the patented machine of the plaintiff had already been invented and was well known in the world including Pakistan. It appears that the office of the witness did not even have the machinery's Encyclopedia from which Dr. Uppal also had copiously copied in his report. The witnesses stated that if an invention is well known in foreign countries but is not published in Pakistan, its imitation in this country whether good or poor would still be called an invention. I am certain that if he had seen the above book which was published several decades before the manufacture of the plaintiff's machine or had investigated the machines used by the other manufacturers of perforated material in Pakistan he would not have called the plaintiff's machine an invention. His evidence is also rendered of little value by the admission of the plaintiff in his plaint that he is only 'one of the inventors'. He does not say that he is the first inventor or that this foreign invention was not at all known in Pakistan when his machine was manufactured.
' P. W. 1 Mir Abdul Rashid, who claims to be an employee of Amir Bakhsh Allah Bakhsh Crown Foundry as Planner, stated that in 1960 Fazal Karim manufactured a press machine for perforating metal sheets. The machine was moulded under his supervision and it was planned by him. About 8 years ago Abdul Aziz defendant came to him and asked him to prepare the same type of machine which was prepared by Muhammad Siddique. He had brought a wooden pattern. He (the witness) told him that the pattern brought by him showed that it was a copy of the machine prepared by him for Muhammad Siddique. He then moulded and prepared the machine of Abdul Aziz also.
' In cross-examination he stated that he remained an employee of the factory from 1964 to 1974. He could not give the names of the separate parts of the machine of the plaintiff. He, however, stated that he had prepared only two parts. One was known as press machine and the other was a rump machine. He could not, however, give the weight of these parts. He admitted that the pattern brought by the customer is not retained by the factory and is returned after the preparation of the part. He did not know whether any record was maintained in the factory about the names and particulars of the customers or any receipt of payment was issued to the customers. He further admitted that he had not seen the machine of Fazal Karim-Muhammad Siddique in working condition. Although according to his examination-in-chief he had stated that Fazal Karim had invented the machine but in cross-examination he stated that the pattern was invented by Muhammad Siddique who at the time of statement might be about 30 to 35 years of age and may be about 24 years old when he brought the pattern to him which means that the pattern had been brought to him from 6 to 11 years ago, although according to the examination-in-chief the time should be 16 years ago. He admitted that no other persons had ever brought any pattern and got the parts prepared from the factory where he worked. He stated that he himself did not agree that the parts prepared by the pattern brought by Fazal Karim would work and gave some suggestions to Fazal Karim and advised him to amend the pattern on the basis of these suggestions. He did not remember the measurements of the pattern. He admitted that his statement about the place where the machine was installed was based on hearsay. He could not say how many horse power engine would be required for properly using the machine which was prepared for Muhammad Siddique on his advice nor he knew the formula of horse power. It was suggested to him that when he had not moulded any such parts before the preparation of the machine of Fazal Karim and Muhammad Siddique, how could he advise Fazal Karim for making amendment in the pattern brought by him. He stated that he had determined this on the basis of his technical knowledge but he could not give the name of that part about which he had given an advice to change. He said that it was known in Punjabi as "Press Dee Body". He denied that the mother of Muhammad Siddique was related to him. He admitted that the record of planning and moulding must be in the factory.
' The evidence of this witness is also not reliable. No documentary evidence which could be available in the factory was produced nor was the factory owner examined. The knowledge of this witness about mechanical engineering does not appear to be very satisfactory since he does not even remember the name the part which he had advised Fazal Karim to change. He could not say what type of engine was required to run the machine. He is merely a planner. According to him, Muhammad Siddique P. W. 8 had prepared the machine although according to the evidence of Muhammad Siddique his father had invented the machine.
' But Muhammad Siddique Nadeem has another story to tell. According to him, a similar machine had already been prepared in the year 1958 and had been working. He denied that Mir Abdur Rashid had also a hand in inventing this machine. He said that the suggestion of Mir Abdur Rashid was only a suggestion which was generally known and accepted. But when asked as what was the suggestion or whether it pertained to the change of angle, length or weight, he stated that he did not know about this. When it was put to him that "if you had become successful in the year 1958 in preparing a machine, why did you act upon the suggestion of Meer Abdur Rashid, P. W. 1 to make changes in the pattern of the machine given by you to the foundry ?" the witness could not answer the question. He stated that Abdur Rashid was making the rear portion of the machine heavier. He stated that these days he operated three machines of identical nature two of which were not cast by the Foundry of Amir Bakhsh Allah Bakhsh. But he did not know the name of the Factory which prepared that machine. It was, however, near Naz Cinema. Then he stated that all the three 'machines had come into operation in the year 1968 and thereafter application for registration was submitted which clearly implies that the three machines were -not manufactured in 1960 but were manufactured and became fit for operation in 1968. He admitted that before preparing the machine his father had failed to prepare files to manufacture iron balls of ball bearing and to prepare grind-wheel and that by profession he was a tin-smith.
' He pleaded lack of knowledge whether such a machine was fixed in the premises of Abdul Aziz son of Mian Muhammad Shafi, Khokharkey Industries, Gujranwala or in the factory of Muhammad Sharif, Engine and Jali Manufacturer, Uggoki Road, Tehsil and District Sialkot, or in the HESCO Small Industrial Estate, Gujranwala since he had come to know about these machines only, on the date of his statement and could not say whether these were foreign manufactured or country made. He, however, admitted that Muhammad Hanif son of Abdul Latif, Crown Expounded machinery Company, Chiniot, Climax Engineering Co.,Gujranwala, Imperial Fan, Gujranwala, Muslim Engineering Works, Gujranwala, and Muhammad Hanif, Perforating Jali Manufactures. Khankah Dogran, had identical machines, either imported or country made but he said that these machines were different. He however could not point out the difference. He could only say that the difference was of combination of parts and the process of manufacture. When he was asked to throw light on the name of the process in which his own machines worked, he said that it worked with the process of punching means associated with some automatic motion of the table on which the sheet is bolted. He then admitted that it was possible that this system may be there in the machines of the above-mentioned premises also. He stated that he could not give the exact difference between the working of those machines and his own machine. He then tried to temper the admission about similarity of all these machines with the belated assertion that he had not seen them.
' Some of the questions and his answers on the subject of difference between foreign machines and the Pakistani manufactured machines are reproduced here :- "Q.-Will you call it an invention if somebody in Pakistan manufactures a machine which has already been manufactured in foreign 'countries as far back as 1929 ?
' A.--I will call it an invention in case there is some difference in the process of manufacture.
' Q.-Kindly see Exh. D/1, can you point out the points of similarity and dissimilarity between your machine described in this document ?
' A.-Exh. D/I gives only the general process. I am. Therefore, not able to answer this question.
' Q.-Kindly see the drawing and specifications in Exh. D/1, can you answer this question by looking at this data ?
' A.-It is not possible to answer the question since it does not denote how the machine described in Exh. DR functions. The only distinction that I have been able to find out is that this machine has been prepared in a highly developed country, while our machine has been manufactured keeping in view the resources of our country. I am unable to understand the document Exh. D/1.
' It may be stated that Exh. D/1 is an extract from the book `Machinery's Encyclopaedia' with 1929 Supplement dealing with the process of manufacture of' such machinery and it deals with a machine with similar process as the plaintiff's machine.
' Most of the questions relating to the machine could not be answered by this witness. He deposed his absolutely scanty knowledge of machinery even though he has been operating it for such a long time He thus could not say anything about the strength of the material, about the friction of the material, the pressure or temperature at which the material melts, the maximum capacity of the punching stroke in the plaintiff's machine, exact number of types which the plaintiff's machine can turn out, how man holes of different types could this machine make at one time assuming that the thickness of the material used is 1/10' or 1/20', how many teeth there are in the machine, the difference in French thread and English thread, or whether the thread marked in Exh. D-2,A was English or French, etc. He admitted that the plaintiff did not have in their possession any documentary proof of their getting the machine prepared in the Foundry of Amir Bakhsh Allah Bakhsh nor he had any documentary evidence of the expenses borne on the machine.
17. I am not, therefore, satisfied that the machine of the plaintiff was either manufactured in the year 1960 or manufactured in the foundry of Amir Bakhsh Allah Bakhsh or that P. W. 1 and P. W. 8 had made any truthful statements. It appears clear that the machine of the plaintiff had also been operated upon in the. Year 1968, though it might have been manufactured sometimes earlier. The knowledge of Muhammad Siddique Nadeem about Mechanical Engineering even as a Mistri is very scanty. On the other hand, it is established from his evidence that a number of other parties are operating identical machines. Though he tried to explain that those machines are different but he could not give the points of difference and took shelter behind the plea that he had not seen them.
' It looks rather odd that the man who is said to have invented and manufactured the machine did not appear in evidence. It is established that he is a tin-smith and had failed in the preparation of several other things, e.g. Files grind-stone (3t) or iron balls for ball bearing. The defendant has taken up the plea that Fazal Karim is an illiterate man and is not capable of making an invention. It appears to me that he has not been produced for the reason that he might not stand the test of cross-examination on technical matters. Such a presumption can be raised against him under section 114 of the Evidence Act. If he had appeared as a witness he could not have given such a statement which would have supported his case fully.
' Several witnesses have been examined on bahalf of the defendant. They are Muhammad Khan Bhatti D. W. 1, Nazir Ahmad D. W. 2, Abdus Seam D. W. 3, Muhammad Akram D. W. 4, Rana Bashir Ahmad D. W. 5 and Abdul Aziz D. W. 6, All these witnesses have stated that such machines, as those of the parties, are with other parties or persons also. They have given specific names of such parties. It is unnecessary to deal with their evidence at any length since P. W. 8 himself conceded this point and his evidence about there being any difference between the plaintiff's machine and the machines worked by those other persons being inconclusive has been disbelieved. But I find that Muhammad Khan D. W. 1 was tested about the knowledge of such machines and he had stood the test of cross-examination. He gave the names of different parts of the machine of the defendants. He is proved to be an independent witness.
' D. SW. 2 stated that he did not know the inventor but there were foreign machines from which any one could copy. This witness is the consanguine brother of Fazal Karim. He denied that there was any dispute between him and the plaintiff. He admitted that Muhammad Siddique had filed a civil suit against him, Muhammad Shafi and Abdul Aziz but the same was decided by a compromise and they had agreed not to make any pattern like the registered pattern of Muhammad Siddique.
But he denied that any of the three brothers had at all prepared any pattern. For this reason they did not see any harm in effecting a compromise. He admitted having seen the machine of Abdul Aziz in the year 1959. In view of the litigation, it is not safe to rely upon this witness.
' Abdus Salem D. W. 3 stated that though he had not repaired such machine but had seen it in the factory where he was working. He stated that the fundamental principle of the working of the power press is the same. The principle in which the punch comes from upward and punches the sheet is the same in all the machines. He had seen the machine of Abdul Aziz in the year 1962-63.
Similar machines were fixed in BECO Company, Factory of Climax Fan, some premises at Gondlanwala Road, Industrial Estate Gujranwala and Muslim Road, Gujranwala. Muhammad Akram D. W. 4, though he stated that Abdul Aziz had made his machine first but he said that the principle of punching in all such machines, whether foreign or country made, is the same. He admitted that he was a cousin of Abdul Aziz and had been coming to the Court on certain dates with Abdul Aziz.
He named a number of factories in which similar machines are working. He then stated that he had seen all those machines with his own eyes. It is not safe to rely upon him.
' Rana Bashir. Ahmad. D. W. 5 ,said that his employer had such machine. He named nine other persons having identical machines which were locally manufactured. Similar is the statement of Abdul Aziz himself who, in addition, asserted that his machine was manufactured in 1959 and was made by his father while the plaintiff's machine was manufactured later after three years.
' But this is not the case of the defendant that the machine prepared by him is at all an invention.
His case is that the formula for manufacturing such machines is widely known add there are large number of foreign as well country made machines in use He said that his machine was operated upon by. Two-horse power electric motor while the plaintiffs operate all their machines with five horse power motor. In cross-examination, he stated that his father had died in 1968.
' In this state of evidence can it be said that the plaintiff is an inventor ? The word 'invention' is defined in subsection (8) of section 2 of the Patent and Design Act as meaning "any manner of new manufacture and includes an improvement and an alleged invention". Manufacture is defined in sub-section (10) of section 2 as including any art, process or manner of producing, preparing or making an article, and also any article prepared or produced by manufacture. Section 3 provides for an application to be made in the prescribed form in the Patent Office for grant of patent. This application must contain a declaration to the effect that the applicant is in possession of an invention and in case of joint application, as in this case, that at least one of the applicants is the true and first inventor or the legal representative of such inventor. Section 13 also talks of the true and first inventor. Under section 5, the Controller is bound to refer to - an examiner every application in respect of which a complete specification has been filed. Section 9 provides that any person may, within four months from the date of the advertisement of the acceptance of an application, give notice at the Patent Office of opposition to the grant of the patent inter alia on the ground- ''(a) .. ... .............. .... . . ....... ..... ..... ....
(b)
(c)
(d) that the invention has been publicly used in any part of Pakistan or has- been made pablicly known in any part of Pakistan.
(e)
' Coming to section 26, it is clear that some of the grounds for revocation of a patent are that the grantee of patent was not a 'true and first inventor' that the invention was not, at the date of the patent, a manner of new manufacture or improvement or that the invention did not involve any inventive step, having regard to what was known or used prior to the date of the patent."
(Underlining* is mine).
It is clear from these provisions that an invention is a manner of a new manufacture though it also includes improvement. But if the process of manufacture is already known, the manufacture cannot be called an invention and neither any patent for such manufacture can be granted nor, if granted, it can be allowed to continue. Moreover, the applicant must be the 'true and first inventor'.
It is not necessary that the entire machi may be an invention. If inventive genius has been exercised in the process or manner of production and that process is different from the process or processes used in other similar machines it would still be an invention.
' It was held in Canadian General Electric Co. v. Fada Radio Ltd. (1) that there must be a substantial exercise of the inventive power or inventive genius, though it may in cases be very slight. Slight alterations or improvements may produce important results, and may disclose great ingenuity.
Sometimes it is a combination that is the invention; if the invention requires independent thought, ingenuity and skill, producing in a distinctive form a more efficient result converting a comparatively. Defective apparatus into a useful and efficient one, rejecting what is bad and useless in former attempts and retaining what is useful and uniting them all into an apparatus which taken as a whole is novel, there is subject matter of invention. A new combination of well- known devices and the application (1) AIR 1930 P C 1 *[Here in italics] thereof to a new and useful purpose may require invention to produce it and may be good subject-matter for a patent. In Pope Appliance Corporation v. Spanish River Pulp & Paper Mills Ltd. (1) it was held that there may be invention in what after all is a simplification. After all invention is finding out something which has not been found out by other people. The quid to the patentee is the monopoly ; the qua is that it presents to the public the knowledge which they have not got.
Thus a new process or improvement of an old process may be an invention. (Lallubhai Chakubhai v. Chimanlal & Co. (2). But there must be some novelty in the process or improvement. Ganendro Nath Banerji v. Dhanpal Das (3).
' In the present case, it is clear that the process of manufacture was widely known. The method of punching of a sheet is the same as that of sewing machine i. e. In a `U'-shaded machine the punch falls from above on th metal sheet and when it rises after punching the sheet slides for the second C punch as the cloth slides in a sewing machine. It would no doubt be an invention if that process has for the first time been adopted by the plaintiff for punching metal sheets. The case of the plaintiff is that by the old process only one hole could be punched at one time since there was no process of sliding. If this be true then discovery of the process of sliding would involve invention.
' But in the present case it is not denied that foreign machines which are much advanced have long been in the field. In this connection, reference may be made to the fundamental difference drawn by Dr. Uppal between a foreign machine and the Pakistani made one : "The fundamental difference in the two types of machines (foreign and Pakistani made) lies in the system of operation. In foreign machines, the job (work piece) is held in a special carriage and this carriage slides the job on an anti-friction stationary bed. In case of Pakistani made machine, the job is fixed on the bed itself and it itself moves under the die head.
' Another basic difference in the two types of machines is that most of the foreign machines described in their catalogues, can hold a number of punching dies (of different dimensions and types) in the turret head and rotation of the turret head is achieved through an independent electric motor. The rotation of the turret head is needed to bring a particular punching die in the desired position. In this way, time consumed in changing the punching the dies can be saved. The die head on Pakistani machines can hold only one punching die at a time and therefore there is no independent electric motor installed to the die head. In other words, the foreign machines can perform different sized holes at one setting of the toots and time in replacing the punching die tools is saved. The Pakistani machine can punch only one type of holes at a time."
' It was only the first point of difference which was stressed by P. W. 8 when he said that his machine works with the process of punching means (1) AIR 1929 P C 38 (2) AIR 1936 Bom. 99 (3) AIR 1946 Oudh 6 associated with some automatic motion of the table on which the sheet is bolted.
' The differences pointed out by Mr. Uppal are only improvements upon the Pakistani made machine. It appears clear that when the machine was first invented more than hundred years ago it could punch one hole at a time making it necessary to raise the punch and slide the sheet with hand and then make another punch. The next step must be of making the punch automatically rise after each punch and making the metal sheet slide for the other punch before the punch falls again. The process of making such carriage which slides the body on an anti-friction stationary bed or a machine holding a number of punching dies instead of one in the turret head must be a later improvement.
' And this is not a mere conjecture. The process of the parties' machine is clearly laid down and described in Exh. D. 1 the Machinery's Encyclopedia with 1929 Supplement, Volume V. The following portions from pages 154, 155 and 216 which have been copied by Dr. Uppal also at pages 3 and 4 of his report, paras 1.4 and 1.5, without acknowledging it, are reproduced :- "Perforating Presses.-Perforating presses are used for punching large numbers of small holes in sheet metal for producing strainers, sieving devices, etc. And also for perforating the sides of circular parts, such as lamp burner galleries, etc. The perforating of shells and flat sheets is done either in nesses of ordinary construction fitted with special attachments or on means of special perforating presses.
' One type of perforating press for operating on flat stock is arranged to perforate the entire width of the sheet at each stroke. The stock is fed forward automatically after each stroke by a double roll ratchet feeding mechanism. For instance, after perforating a double row of holes simultaneously, the stock is fed in the required distance for perforating the next double row, and so on ' Another design of perforating press is so arranged that the feed-rolls have a side motion which automatically shifts the sheet sideways at each stroke for the purpose of perforating a staggered pattern, by means of a single row die.
' There is still another type of perforating press which has, in addition to the double-roll feed with lateral motion, a device for varying the feed, thus enabling the sheet being perforated to move an equal distance for two or three strokes, and then a greater or less distance. The plate or other part to be punched is carried by a table that is shifted an amount equal to the spacing required between the holes. This spacing table may have either a hand or automatic feed. The mechanism of an automatic spacing table is so designed that the table is shifted as soon as the punch has moved up far enough to clear the work, the movement being completed before the punch again engages the stock."
' The last paragraph which is from page 216 of the above book proves that the idea of mechanism of an automatic spacing table which is so enough to clear the work is not a new one but machines had been made on designed that the table is shifted as soon as the punch has moved up far this basis even before 1929.
' It is very strange that as stated above Dr. Uppal had himself copied this paragraph from the MACHINERY'S ENCYCLOPAEDIA and even then he characterized the plaintiff's machine which is alleged to have been made for the first time in 1960 to be an invention. The only difference in the foreign made machine and the plaintiff's machine pointed out by him as well as by P. W. 8 is that in the foreign machine the job (work piece) is held in the special carriage and this carriage slides the job on an antifriction stationary bed. While in the case of the plaintiff's machine the job is fixed on the bed itself and it itself moves under the die head. But he did not consider the above paragraph from page 216 which describes the existing mechanism of an automatic table which moves as soon as the punch moves up. This is exactly the same mechanism as used in the machines of the parties.
' I directed both the parties to give me in writing the points of similarity and difference between the machine in Exh. D. 1 and the machine in Exh. P. 1 of the plaintiff. Muhammad Siddique Nadeem on behalf of the plaintiff produced such a document in which he described a resemblance between a sewing machine and the punching machine in Exh. D.
1. The only difference which he could point out in the machine Exh. D. 1 and the specification Exh. P. 1 is that in Exh. P. 1 the main driving shaft having hardly 1 feet length (Block 8 is mounted on) is producing the same result as compared to the main driving shaft (B) having a long length just bigger from the main body of the machine (Exh. D. 1) itself. He admitted that so far as the motion of the table is concerned, it is no doubt that its general function seems to be the same. But then he has drawn the inference that it is due to insufficient information of Exh. D. 1 that it is impossible to find out the differences of the machines in question.
' This is not, however, the point. The sliding of the table as soon as the punch moves up being the only novelty pointed out the issue is considerably narrowed down. If once it is admitted that in the machine described in the Machinery's Encyclopaedia it was the table which slide that sufficiently answers the query whether the plaintiff's machine is an imitation of machines which were in use even in 1929 or before. Once this question be answered in the affirmative, as it must be answered, the plaintiff's machine cannot be called an invention. The admission by P. W. 8 that there were similar machines with a number of other parties clinches the issue against the plaintiff. I, therefore, hold that the plaintiff's machine is not an invention. In view of this, even if it is assumed that the defendant's machine is an imitation of plaintiff's machine, it would not be material. The defendant's case has throughout been that none of the parties are inventors. It may be stated that though the plaintiff claimed to be the first inventor in the application for grant of patent before the Controller of Patents and Designs, this is not his case in the plaint. There he alleges to be one of the inventors.
This is an admission of the fact that there are other inventors of similar machines. The plaintiff cannot, therefore, be called to be the true or first inventor nor is this his case in the plaint. I find issues Nos. 2, 3 and 5 against the plaintiff.
20. Issue No 8 ' The defendant is not entitled to any special costs since the plaintiff had approached the Court on the basis of a patent granted, though erroneously, in his favour.
21. Issue No, 9: As a result of the findings on issues Nos. 2, 3 and 5, the plaintiff's suit is dismissed with costs while C.
M. 76/L of 1972 is allowed and Patent No, 121506 granted to the plaintiff is revoked. The plaintiff shall pay the costs of that case also to the defendant.