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Dhanpat Seth And Ors. v.

Nil Kamal Plastic Crates Ltd

In the

Hon’ble High Court of Himanchal Pradesh,
Shimla
____________________________________________________

Dhanapat Seth and Ors.
(Appellant)

V.
Nil kamal Plastic crates ltd.
(Respondent)

____________________________________________________

Memorandum of the behalf of Respondent

Kamaljeet Meena
(Counsel on behalf of Respondent)

Semester VI

Roll. No. 068

Submitted on 06-04-2017

1|Page

16 2|Page . Dhanpat Seth And Ors. Nil Kamal Plastic Crates Ltd TABLE OF CONTENTS LIST OF ABBREVIATIONS 3 INDEX OF AUTHORITIES 4  NATIONAL CASE LAWS 4  BOOKS AND JOURNALS 4  STATUTES 4 STATEMENT OF FACTS 5 ISSUES RAISED 7 SUMMARY OF PLEADINGS 8 WRITTEN SUBMISSIONS 9 PRAYER FOR RELIEF ………………………. v.

Others p. Versus vol. Article Hon’ble Honourable Ors. Another Art.C. Page Para Paragraph S. Volume Ed.O.I.C. Dhanpat Seth And Ors. Nil Kamal Plastic Crates Ltd LIST OF ABBREVIATIONS & And Anr. v. Edition Art. Union of India v. Bombay cl clause 3|Page .C. Supreme Court S. Article Bom. Supreme Court Cases U.

Nil Kamal Plastic Crates Ltd INDEX OF AUTHORITIES CASE LAWS  Ram Narain Kher v. v. Dhanpat Seth And Ors. v Fire Stone Tire and Rubber Co. Ltd [1972] RPC 457 at 485- 486 (CA) BOOKS AND JOURNALS  P. EASTERN LAW HOUSE) STATUTES REFERRED 1. Patents appeal tribunal ex parte Beecham Group Ltd (1973)I All ER 627  Windsurfing v Tabur [1985] RPC 59 at 77  General Tire Rubber Co. PATENT ACT. INTELLECTUAL PROPERTY LAW (3RD EDITION. PATENT LAW(4TH EDITION. LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS (2ND EDITION. Ambassador Industries New Delhi and Another AIR 1976 Delhi 87  Biswanath Prasad Radhey Shyam v. 1970 4|Page . NARAYANAN. AHUJA. NARAYAN.K. EASTERN PUBLISHING COMPANY)  V. Hindustan Metal Industries AIR 1982 SC 1444  R v. LEXIS NEXS BUTTERWORTHS WADHWA)  P.

filed a suit seeking grant of permanent prohibitory injunction restraining the defendant from infringing Patent No. 24-5-2002.e. in fact. Govt. 195917 granted in favour of the plaintiffs on 11-7-2005. the invention was visualized by them in 1999. Nil Kamal Plastic Crates Ltd STATEMENT OF FACTS 1. of H. The patent was granted in their favour on 11-7-2005 but it will relate back to the date of application i. 5. 3. The plaintiffs along with the suit filed an application for grant of interim relief seeking temporary injunction restraining the defendant from manufacturing or selling its version of the Kilta or committing any acts which may infringe in the patent granted to the plaintiffs. The appellants. and other private parties. Dhanpat Seth And Ors. 2. The respondent-defendant. hereinafter referred to as the defendant. The plaintiffs consequently filed a suit praying for a decree for grant of permanent prohibitory injunction in their favor restraining the defendant from infringing the Patent No. 4.P. hereinafter referred to as the plaintiffs. 195917 and also for a decree of mandatory injunction virtually in the same terms. sold this device to the Department of Horticulture. They developed it over a period of time and applied for grant of patent on 24-5-2000. According to the plaintiffs. The invention of the plaintiffs as set out by them in the plaint is as follows: A device for hauling agriculture produce comprising a container of synthetic polymeric material defined by a hollow frusta-conical body open at the top and closed at the base and tapering from the operative open top to the base with perforated walls. 5|Page . v. The patent has been granted in respect of a device used for manufacture of manually hauling the agricultural produce.

This application was contested by the defendant and where the learned single Judge came to the conclusion that the device patent of which was obtained by the plaintiffs is basically an imitation of the traditional Kilta hence by an order dismissed the application for grant of interim relief. The plaintiffs have hence appealed against the order of the learned single judge. v. 7. 6|Page . Dhanpat Seth And Ors. Nil Kamal Plastic Crates Ltd 6.

Dhanpat Seth And Ors. Whether Nil Kamal Plastic Crates Ltd has infringed the patent granted to Dhanapat Seth and Ors. v. Nil Kamal Plastic Crates Ltd ISSUE RAISED 1. 7|Page .

2001. Whether Nil Kamal Plastic Crates Ltd has infringed the patent granted to Dhanapat Seth and Ors. Taiwan and thereafter the production of the Kilta was started and the same was introduced in the market. Nil Kamal Plastic Crates Ltd SUMMARY OF PLEADINGS 1. 8|Page . Thus the patent granted to applicant should be revoked. There is no novelty or invention in the patent and in fact it is just centuries old device popularly known as "KILTA" which was originally made of bamboo and has now been produced in plastic. It designed a similar Kilta and sent drawings of the same for manufacturing of the design to Arries Moulding Company Ltd. v.. Dhanpat Seth And Ors. By the description provided above the product made by plaintiffs is clear imitation of ‘KILTA’ which has been used in hilly areas from time immemorial thus the patent has wrongly been granted in their favor. Apart from issue discussed above the defendant had anticipated the device in fact in December.

In order to advance both argument two sub contentions are made. v. 9|Page . Hence where patent is granted erroneously the breach cannot happen. There is no novelty or invention in the patent and in fact it is just centuries old device popularly known as "KILTA" which was originally made of bamboo and has now been produced in plastic. In this case the Plaintiffs have contented that there is infringement of patent granted to them by defendants. But while closely observing the facts we may able to prove that the patent granted to plaintiffs is in itself erroneous because plaintiffs does not have proper grounds to get the patent over their device. Nil Kamal Plastic Crates Ltd WRITTEN SUBMISSIONS 1.. Taiwan and thereafter the production of the Kilta was started and the same was introduced in the market. The ‘invention’ of the plaintiffs as set out by them in the plaint is as follows: A device for hauling agriculture produce comprising a container of synthetic polymeric material defined by a hollow frusta-conical body open at the top and closed at the base and tapering from the operative open top to the base with perforated walls. Thus the patent granted to applicant should be revoked. Dhanpat Seth And Ors. It designed a similar Kilta and sent drawings of the same for manufacturing of the design to Arries Moulding Company Ltd. Apart from issue discussed above the defendant had anticipated the device in fact in December. By the description provided above the product made by plaintiffs is clear imitation of ‘KILTA’ which has been used in hilly areas from time immemorial thus the patent has wrongly been granted in their favor. 2001. Whether Nil Kamal Plastic Crates Ltd has infringed the patent granted to Dhanapat Seth and Ors. said perforations being essentially quadrilateral in configuration and reducing in dimensions from the operative top to the base.

compromised and diluted by the fact that a patent could simply be granted on economic significance alone. According to section 2(j) . Ambassador Industries New Delhi and Another1 Delhi High Court observed that. therefore. we should examine the word. the patentee will either have to show that the invention includes technical advancement or has economic significance. not necessary that the product developed should be a totally new product. Dhanpat Seth And Ors. The requirement of technical advancement is. or both. In order to advance this argument that there is no novelty or invention in the patent granted to plaintiffs it would be relevant to refer to the definition of invention and inventive steps in Section 2(j) and 2(ja)) of the Patents Act. it would amount to an inventive step. In the case of Ram Narain Kher v. Nil Kamal Plastic Crates Ltd (A) Product of plaintiff lacks inventive step. 1970. Again in order to deal with plaintiffs claim that their product involved an inventive step. According to section 2(ja) . It is. Even if a product is substantially improved by an inventive step. therefore. it would be termed to be an Invention."invention" means a new product or process involving an inventive step and capable of industrial application. The definition of 'inventive step' provides that when technical advances as compared to existing knowledge take place in an existing product or there is improved economic significance in the development of the already existing device and the invention is not obvious to people skilled in the art. v. there could be no inventive step whatsoever. An “inventive step” which is a necessary ingredient of invention in order to make an applicant eligible for grant of patent under the Act must be relating to an invention involving technical 1 AIR 1976 Delhi 87 10 | P a g e ."inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art. To meet the inventive step criterion. A bare perusal of the definition of invention clearly shows that even a process involving an inventive step is an invention within the meaning of the Act. ‘If the invention was obvious.

The traditional Kilta is made of bamboo. Nil Kamal Plastic Crates Ltd advance or having economic significance or both along with a necessary factor that such invention should make it “not obvious to a person skilled in the art.” The observations made by Supreme Court in Biswanath Prasad Radhey Shyam v. The Kilta made by the defendant is also made of polymeric material. obvious to the person skilled in art as a mere workshop result and otherwise it is not’. A visual comparison of the' three items prima facie establishes that the articles manufactured by the plaintiffs and the defendant are virtual copies of the traditional Kilta. If the answer comes in affirmative then certainly the said invention under challenge is anticipated by the prior art or in other words. So when we examine the Kilta There is virtually no difference in the overall design of the tradition Kilta or the 'devices' developed by the plaintiffs and: the defendant. both the materials are polymers in common parlance known as plastic. A Kilta is a traditional product which has been used since time immemorial for carrying produce including agricultural produce in hill areas especially in the State of Himachal Pradesh. In actual fact. The Kilta manufactured by the defendant is made of high density polyethylene (HDP). The question which arises for consideration is whether this change of material from bamboo to plastic and the development of adjustable nylon straps with buckles is an inventive step falling within the meaning of Section 2{ja)? 2 AIR 1982 SC 1444 11 | P a g e . The only difference is that the Kilta is made of bamboo and the Kilta made by the plaintiffs is made of polypropylene copolymer (PP). Dhanpat Seth And Ors. The shape of a Kilta is conical having a wider circular opening on the top and it tapers and narrows down at the bottom. While taking the way as directed by above given directions of different courts to respective cases we should know what the Kilta is. v. The only visible difference is that device now being manufactured is having detachable nylon straps with buckles. Hindustan Metal Industries2 are that ‘A “person skilled in the art” would presuppose that the said person would have the knowledge and the skill in the said field of art and will not be unknown to a particular field of art and it is from that angle one has to see that if the said document which is prior patent if placed in the hands of said person skilled in art whether he will be able to work upon the same in the workshop and achieve the desired result leading to patent which is under challenge.

not involving the exercise of any inventive faculty. baskets. The mere introduction of buckles would not amount to a new device being called an invention or an inventive step. does not qualify for the grant of a patent”. while dealing with the meaning of the words 'inventive step' court held as follows: “It is important to bear in mind that in order to be patentable an improvement on something known before or a combination of different matters already known. This Court should take notice of the fact that much prior to the device being manufactured by the plaintiffs. Bishwanath Prasad Radhey Shyam v. brass. Therefore. the mere fact that the device is made of polymeric material instead of bamboo is not an inventive step involving any novelty. and must independently satisfy the test of invention or an "inventive step".1970. v. Dhanpat Seth And Ors. The process of making traditional items out of such polymers is a well known and well established process. There is nothing new about the process of manufacturing the traditional Kilta made of natural material from synthetic material. tables. Jugs. Nil Kamal Plastic Crates Ltd The answers can be found in views of The Apex Court in M/s. To be patentable the improvement or the combination must produce a new result or a new article or a better or cheaper article than before. should be something more than a mere workshop improvement. The ropes in the Kilta can also be adjusted by the user keeping in view the height of the person using the Kilta and the weight being carried by him. 3 AIR 1982 SC 1444 12 | P a g e . Even nylon straps now added are virtually copies of the ropes used in the traditional Kilta. Thus as the argument advanced above it can be concluded that the product of the plaintiff is not an invention according to the provisions given in Patent act. leather and other natural materials have been replaced by plastic. The combination of old known integers may be so combined that by their working inter-relation they produce a new process or improved result. shoes and numerous other items which were traditionally made of natural material but are now made of plastic. traditional items made out of woods. steel. The device being manufactured by the plaintiffs is basically a Kilta but made out of synthetic polymeric material which is commonly known as plastic. Mere collection of more than one integers or things. Hindustan Metal Industries3 . In this regard reference may be made to chairs. so in the light of Section 64 1(d) patent granted in favor of the plaintiff should be revoked.

As already given reasons regarding to invention as to why the patent granted to applicant was erroneous there is another ground to challenge the patent of applicant. Taiwan in order to get it manufactured and thereafter the production of the Kilta was started and the same was introduced in the market.Subject to the provisions contained in this Act. It 13 | P a g e . This section is meant for protecting the interests of prior users of the invention claimed. or has previously manufactured it. 2001. That the defendant had anticipated the device in fact in December. According to section 64 1(e) . 24-5-2002. a patent. Nil Kamal Plastic Crates Ltd (B) Patent granted to applicant is liable to be revoked. As already established by the fact mentioned in the case Plaintiffs applied for grant of patent on 24-5-2002. that is to say that the invention so far as claimed in any claim of the complete specification is not new. It designed a similar Kilta and sent drawings of the same design to Arries Moulding Company Ltd.. whether granted before or after the commencement of this Act. Dhanpat Seth And Ors.) to appeal the revocation of the patent granted to applicants. having regard to what was publicly known or publicly used in India before the priority date of the claim or to what was published in India or elsewhere in any of the. A person who is already manufacturing a thing. be revoked on a petition of any person interested or of the Central Government by the Appellate Board or on a counter-claim in a suit for infringement of the patent by the High Court on any of the following grounds. The patent was granted in their favor on 11-7-2005 but it will relate back to the date of application i. documents referred to in section 13. Section 64 1(e) of the Patents act. and has put it into use is not to be stopped from doing what he has done before. v. The present situation gives ground to Defendants (Nil Kamal Plastic Crates Ltd. which is still later than the anticipation of device of Nil kamal plastic crates which they sent (Design) to Arries Moulding Company Ltd.e. may. Taiwan. Patents are not to be issued to an inventor if the result would be to stop a prior user from continuing his use.1970 gives right.

v. Patents appeal tribunal ex parte Beecham Group Ltd.5 Clear guidelines for the determination of this question can be gathered from the authorities. The exercise is essentially one of comparison between the claims made by the patentee and prior publication in order to see whether the information imparted in the prior document is equal in practical utility to that imparted in the patentee’s claims. Later on. Lord Denning in the case of R v. in accordance with the normal principles of construction. He may find that it has other special advantages. Nil Kamal Plastic Crates Ltd may be that the prior user (who has manufactured the thing previously) did so in complete ignorance of the scientific phenomenon involved. The process of comparison can be broken down: (1) The first step is to construe the prior document as at the date of its publication. in short.4 Observed that-“He may not have had the least idea of the chemical properties of the ingredients. He may have manufactured the thing simply by chance. construed in accordance with the principles set out earlier. and then found out that it had particular advantages. Yet that discovery does not entitle him to stop the prior user from continuing to manufacture it. taking account of surrounding circumstances. Dhanpat Seth And Ors. but excluding subsequent documents. information and events. (2) The next step is to compare the disclosure in each prior document separately with the disclosure in the patentee’s claim. He cannot get a patent for the product. excluding the benefit of hind sight. some other person may quite independently invent a process for manufacturing the very same thing. would it stop the prior user from doing what he was doing before? The notion behind anticipation is that it would be wrong to prevent a man from doing what he has lawfully done before the patent was granted. Oliver in the case of Windsurfing v Tabur [1985] RPC 59 at 77 14 | P a g e . or was useful for particular purposes. so as to stop the prior user from doing what he did before. The test is: If this patent were granted. 4 (1973)I All ER 627 5 J. or can be put to other extra purposes.

the prior disclosure must contain a clear description of something or clear and unambiguous directions to do or make something that would infringe the claim if carried out after the grant of the patent. v. The patentee’s claim has been anticipated if the “clear and unmistakable directions” in the prior publication. Hence the patent which is liable to revoked cannot be made basis that the defendants has infringed this. and secondly the Nil Kamal Plastic Crates were already producing these kind of products and the products were amply available in the market. on making the comparison. Where something within the claim had been disclosed it did not matter that the disclosure was less preferred. which has been used by public from the time immemorial. if the patentee’s claims were valid. Thus by the argument advanced as above in order to prove that the patent granted to applicant are liable to be revoked. 6 [1972] RPC 457 at 485-486 (CA) 15 | P a g e . US Court in the case of General Tire Rubber Co. when carried out by the skilled workmen would “inevitably” result (not simply might result) to something being made or done which. authorities firstly just ignored the fact that said product was clear imitation of Kilta. Ltd. we pray to Hon’ble High Court to save the interest of defendents and revoke the grant of patent which is erroneously given to applicant. Nil Kamal Plastic Crates Ltd (3) The final step is to ask whether. In the present case none of the steps were taken by the appropriate authorities while granting the patent to applicant. Dhanpat Seth And Ors. the prior document discloses the same invention as that disclosed in the patentee’s claim. v Fire Stone Tire and Rubber Co. 6 held the view that for a claim to be anticipated. would constitute an infringement.

v. authorities cited and arguments advanced. which the Court may deem fit in light of justice equity and good conscience. To revoke Patent granted to applicant. The Court may also be pleased to pass any other order. issues raised. Dhanpat Seth And Ors. the Counsel on behalf of respondent humbly prays to the Hon’ble High Court to: 1. Uphold the decision of single judge of this Hon’ble High Court.04/04/2017 Counsel on behalf of Respondent Kamaljeet Meena 16 | P a g e . All of which is most humbly submitted before the Hon’ble High Court Date. 2. Nil Kamal Plastic Crates Ltd PRAYER FOR RELIEF In light of the facts of the case.