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Bajaj Auto vs TVS Auto

Bajaj Auto vs TVS Auto

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Published by rathodsandeep
Genericipguy copy of Chennai high court order granting injunction against TVS in favour of Bajaj for patent on DTSi engine
Genericipguy copy of Chennai high court order granting injunction against TVS in favour of Bajaj for patent on DTSi engine

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Published by: rathodsandeep on May 20, 2008
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09/04/2010

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Judgement Date : 16.02.2008Bajaj AutoLtd., State of Maharashtra rep. by S. Ravikumar vs. TVS MotorCompany Ltd.ANDTVS Motor Company Limited rep. by its Authorised Signatory, Mr. Harne VinayChandrakant vs. Bajaj Auto LimitedCitation: MIPR 2008(1)217Issuing Authority : MADRAS HCO.A. No. 1357 of 2007 in C.S. No. 1111 of 2004 and O.A. No. 1272 of 2007 in C.S. No.979 of 2007Hon'ble Judges: P. Jyothimani, J.Category : Intellectual Property RightsJUDGMENTP. Jyothimani, J.
1. The plaintiff in C.S. No. 979 of 2007 is the defendant in C.S. No. 1111 of 2007.2. C.S. No. 1111 of 2007 is a suit filed under Section 108 of the Patents Act, 1970 for therelief of permanent injunction in respect of the plaintiff's patent No. 195904 and/or fromusing the technology/invention described in the said patent and/or manufacturing,marketing, selling, offering for sale or exporting 2/3 wheelers, including the proposed125-CC FLAME motorcycle containing an internal combustion engine or any internalcombustion engine or product which infringes the plaintiff's patent No. 195904, claimingof damages for infringement of patent to the extent of Rs. 10,50,000/- etc.Pending the said suit, the plaintiff therein, namelyBajaj AutoLimited has filed O.A. 1357 of 2007 praying for an order of temporary injunction restraining the respondentfrom in any manner infringing the applicant's patent No. 195904 and/or from using thetechnology/ invention described in the said patent and / or manufacturing, marketing,selling, offering for sale or exporting 2/3 wheelers, including the proposed 125 ccFLAME motorcycle containing an internal combustion engine or any internal combustionengine or product which infringes the plaintiff's patent No. 195904.3. Likewise, the plaintiff in C.S. No. 979 of 2907 M/s.TVSMotor Company Limited hasfiled the suit on the basis of groundless threat of infringement under Section 106 of thePatents Act, for declaring that the threats held out by the defendant on September 1 and 3,2007 that the plaintiff is infringing the defendant's patent No. 195904 and that thedefendant is proposing to take infringement action against the plaintiff are unjustified, for declaring that the plaintiff's productTVSFlame which uses 2 spark plugs with screw
 
fitted sleeve and 3 valves does not infringe patent No. 195904 of the defendant, for  permanent injunction restraining the defendant from continuing the issuance of threatsthat the plaintiff is infringing the defendant's patent No. 195904 directly or indirectly inany manner including by way of circulars, advertisements, communications orally or inwriting to the plaintiff or any other person, and thereby interfering with the launch andsale of productTVSFlame apart from directing the defendant to compensate the plaintiff with a sum of Rs. 1 crore or as determined by this Court as damages sustained on accountof the unjustified threats made by the plaintiff.Pending the said suit, the plaintiff has filed O.A. 1272 of 2007 for an order of interiminjunction restraining the respondent from interfering with the manufacture andmarketing of applicant's products using IC engine with 3 valves and 2 spark plug.4. This Court after hearing the respective counsel for the applicant and respondent, by anorder dated 19.12.2007 has ordered in O.A. No. 1357 of 2007 in C.S. No. 1111 of 2007 asfollows:I have carefully gone through the records. It is stated that number of motorcycles have been booked as on date. The number of motorcycles booked is not ascertainable immediately. In such circumstances, it isordered that the respondent shall not receive any further booking inrespect of the motorcycles containing the disputed engine Technology patent. Insofar as the motorcycles already booked/ the respondent is atliberty to deliver them subject to the following direction: That is therespondent is directed to maintain accounts for the motorcycles sodelivered. List the suit along with C.S. No. 979 of 2007, on 3.1.2008.5. The respondent in the said 0. A. 1357 of 2007 in C.S. No. 1111 of 2007 has filed anappeal in O.S.A. No. 420 of 2007 against the above said order dated 19.12.2007. TheHon'ble First Bench of this Court by order dated 20.12.2007, has suspended the saidorder of the learned single Judge and on the basis of an agreement between the partiesthat applications for injunction in both the suits as well as the appeal were directed to beheard by the Bench on 04.01.2008, has issued direction making it clear that the appellant,M/s.TVSMotor Company Limited will not be entitled to claim any equity on account of sale of its motor bikes in the meantime.6. As the matters were subsequently not posted, the applicant in O.A.No. 1357 of 2007 inC.S. No. 1111 of 2007, who is the plaintiff, namely,Bajaj AutoLimited, has filed Civil Appeal No. 523 of 2008 before the Hon'ble Supreme Court against the above said order of the Bench dated 20.12.2007. The Hon'ble Supreme Court, by order dated 18.01.2008,while setting aside the above said order of the Division Bench, has requested the singleJudge to hear and dispose of the application as an interim application after parties haveexchanged their respective affidavits, in the following words:To put an end to the controversy, we set aside the impugned order passed by the Division Bench and we request the Single Judge to hear anddispose of the Application as an Interim Application after parties haveexchanged their respective affidavits. They shall do so within one week 
 
from, today. We request the Single Judge to place the said Application for hearing on 29.01.2008.We make it clear that from today till 29.01.2008 respondent will not book further orders. However, booking done before this day (i.e.18.01.2008)will not stand cancelled. This order will apply only till 28.01.2000. If for some reason, matter cannot be heard on 28.01.2000, Single Judge can bemoved by party affected for appropriate interim orders.7. It is by virtue of the above said directions, the above applications for injunction are posted before this Court.8. When the applications were taken up for hearing on 29.01.2008, at the instance of thelearned senior counsel appearing for the respondent in O.A.1357 of 2007 in C.S. No.1111 of 2008,TVSMotor Company Limited, the following order was passed by consentand the applications in both the suits were heard in detail.Heard the learned senior counsel Mr. C.A. Sundaram appearing for theapplicant.In view of the on going hearing, learned senior counsel appearing for therespondent in this application, viz., M/s.TVSMotor Company Limited on behalf of his clients submits and undertakes that the respondent shall notreceive any further booking in respect of the motor cycle containing thedisputed Engine Technology Patent. He also undertakes to maintainaccounts for the motorcycles so delivered. The said undertaking isrecorded.Post the matter for further hearing on 30.01.2008.9. In both the applications, the parties have exchanged their affidavit, counter affidavit,reply affidavit and rejoinder affidavit apart from filing the typed set of papers for the proper appreciation of the issue involved in these applications. I shall refer to the partiesas arrayed in O.A.1357 of 2007 in C.S. No. 1111 of 2007, since that happens to be thesuit filed for the relief against patent infringement.10. According to the applicantBajaj AutoLimited, it was granted Indian Patent No. 195904 in respect of a patent application titled "An Improved Internal combustion engineworking on four stroke principle" with a priority date of 16th July 2002. The saidinvention relates to the use of twin spark plugs for efficient combustion of lean air fuelmixture in small bore ranging from 45 mm to 70 mm internal combustion engine workingon 4 stroke principle. The respondent, M/s.TVSMotor Company Limited has launchedmotor bikes of 125-CC on 13/14.12.2007 under the trade mark 'FLAME' powered with alean burn internal combustion engine of bore size 54.5 mm with a twin spark plugconfiguration, which according to the applicant, infringes its patent No. 195904.10(a). According to the applicant, which is a Company of theBajajGroup has invented aunique technology of using two spark plugs for efficient burning of lean air fuel mixturein a small bore engine in the size between 45 mm and 70 mm. The use of two spark plugs

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