Sulphur Mills Injunction Denied, Credible Challenge CHS

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1225/2018, CC(COMM) 9/2019 & I.A. 3913/2023

SULPHUR MILLS LIMITED ..... Plaintiff
Through: Mr. Hemant Singh, Mr. Hari

Subramaniam, Ms. Mamta Rani Jha, Mr.
Siddhant Sharma, Mr. Sanuj Das and Mr.
Abhay Tandon, Advs.
versus
DHARMAJ CROP GUARD LIMITED & ANR. .... Defendants
Through: Mr. Prashant Phillips, Ms.

Vindhya S. Mani and Ms. Vaishali Joshi,
Advs. D-1
+ CS(COMM) 525/2021, I.A. 15315/2021, I.A. 3860/2023, I.A.

7390/2023, I.A. 7986/2023, I.A. 7990/2023, I.A. 7991/2023,
I.A. 7992/2023 & I.A. 11784/2023

Abhay Tandon, Advs.
versus
DAYAL FERTILIZERS PVT. LIMITED AND ORS.

..... Defendants
Through: Ms. Rajeshwari H., Mr.

Swapnil Gaur and Mr. Deepanshu Nagar
Advs. for D-1&3
Mr. S.K. Bansal and Mr. Ajay Amitabh
Signature Not Verified Suman, Advs. for D-2
Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 1 of 84
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
+ CS(COMM) 564/2021, I.A. 14641/2021 & I.A. 5354/2023

Abhay Tandon, Advs.
versus
SULPHUR CROP CARE PVT. LTD. & ORS. ..... Defendants
Through:
+ CS(COMM) 621/2021, I.A. 15971/2021 & I.A. 5320/2023


Abhay Tandon, Advs.
versus
MOTI INSECTICIDES PVT. LTD. ..... Defendant

Advs.
+ CS(COMM) 627/2021, I.A. 16098/2021, I.A. 10877/2022, I.A.

14689/2022 & I.A. 5319/2023

Abhay Tandon, Advs.
Signature Not Verified
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
versus
CROP CHEMICALS INDIA LTD. ..... Defendant

Advs.
+ CS(COMM) 344/2022, I.A. 8074/2022, I.A. 17754/2022, I.A.

17786/2022, I.A. 5316/2023, I.A. 7480/2023 & I.A. 7481/2023

Abhay Tandon, Advs.
versus
SHREE RAM AGRO INDIA & ORS. ..... Defendants

Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 18.03.2024
1. The plaintiff in all these suits is the registrant of Indian Patent

IN 282429 (IN’429) titled “Novel Agricultural Composition”
(hereinafter referred to as “the suit patent” and the “suit
composition”). The plaint alleges that the defendants in these suits are

By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
infringing the suit patent and seeks a decree of permanent injunction
restraining them from doing so.
2. Applications have been filed, in these suits, by the plaintiff,

under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure,
1908 (the CPC), seeking interlocutory injunction against the
defendants exploiting the suit patent, pending disposal of the suits.
They are IA 15243/2018 in CS (Comm) 1225/2018, IA 15315/2021 in
CS (Comm) 525/2021, IA 15971/2021 in CS (Comm) 621/2021, IA
16098/2021 in CS (Comm) 627/2021 and IA 8074/2022 in CS
(Comm) 344/2022. This judgment disposes of said IAs.
3. Detailed submissions were advanced by learned Counsel for all

parties, over several days. Copious written submissions have also
been filed. Mr. Hemant Singh argued for the plaintiff in all the suits.
Mr. S.K. Bansal led arguments for the defendant in CS (Comm.)
525/2021 and Ms. Rajeshwari H argued for the defendant in CS
(Comm.) 525/2021, CS (Comm.) 621/2021, CS (Comm.) 627/2021
and CS (Comm.) 344/2022.
Rival Stands
4. The following submissions have been advanced by the plaintiff,

in the plaint as well as at the Bar through Mr Hemant Singh:
(i) Sulphur is a known elemental fertilizer for feeding plants.

It is essential for the synthesis of chlorophyll in leaves and
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
fixation of nitrogen in legumes. Sulphur, along with
phosphorous and nitrogen, is essential for balanced fertilization
of plants.
(ii) Sulphur cannot, however, be directly absorbed by plants.

Elemental sulphur is insoluble in water, inflammable and is an
irritant. Sulphur has, therefore, to be absorbed in its sulphate
(SO4) form.
(iii) Over a passage of time, the content of natural sulphur in

soil has decreased.
(iv) Traditionally, fertilizers contained sulphur blended with

other granular substances such as phosphates, nitrates, urea and
potash. These were dispensed in the form of prills, soluble
sulphur liquids and wettable powders and mirconized powders
which were then applied to the soil.
(v) Existing sulphur containing fertilizer formulations,

however, posed the following drawbacks, in their use:
(i) The fertilizer had to be applied in high doses,

ranging between 10 kg per acre for Sulphur bentonite
compositions or about 25 kg per acre for sulphur based
fertilizers to more than 100 kg per acre in the case of
gypsum.

By:AJIT KUMAR
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Date:24.03.2024 10:50
(ii) There was a high risk of leaching1 owing to the
high concentration of these compositions in the soil.
(iii) Conversion into sulphate and rendering the

sulphate available to the plants took considerable time.
The fertilizer had to be applied to the soil 2 to 8 months
in advance in the case of sulphur powder and 2 to 3
months in the case of sulphur prills.
(iv) The techniques for application of the fertilizers

was incompatible with modern irrigation methods such as
drip and sprinkler irrigation. Owing to the large particle
size of the compositions, they do not disperse in water.
This leads to nozzle clogging in the irrigation equipment.
The averment, in part 14 of the plaint, that the existing
sulphur based fertilizers had large particle size of 50 –
100 µm has not been denied in the corresponding
paragraph of the written statement of the defendants.
(v) In conventional fertilizer compositions, use of

sulphur of very fine particle size (75-150 µ) was
considered to represent a fire and explosive hazard.
Reference was made, in this context, to the article
Elemental sulfur fertilizers and their use on crops and

1
Leaching refers to the loss or extraction of certain materials from a carrier into a liquid.
By:AJIT KUMAR
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Date:24.03.2024 10:50
pastures by C.C. Boswell and D.K. Friesen2, on which
the defendants themselves sought to place reliance.
(vi) On dissolution in water, conventional fertilizer

compositions do not exhibit uniform suspension. This
results in uneven coverage on the plant and reduces the
bio-efficacy of the product.
(vii) Sulphuric acid, nitric acid and phosphoric acid,

which are used to produce these fertilizers, are hazardous.
(vi) Sulphur based agricultural compositions may be

fungicides or fertilizers. Fungicides protect crops from fungi.
They are usually sprayed on the leaves of the plants (foliar
application), as the fungi are on the plant surface. Fertilizers,
on the other hand, are plant growth regulators and are,
therefore, applied in the soil. Sulphur in fertilizers is converted
into sulphate and assimilated by the plants. Thus, the manner of
application of fertilizers and fungicides is totally distinct and
different.
(vii) Over a period of time, the concept of Water Dispersible

Granules (WDGs) in agrochemical formulations was evolved.
WDGs were known in the prior art. The plaintiff’s own earlier
Indian Patent Application 655/MUM/2000 (hereinafter referred
to as “App 655”) was for “an improved fungicide/miticide,

2
Fertilizer Research 35 by Kluwer Academic Publishers © 1993 pg 127 @ pp 128-140
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
sulphur formulation in the dry flowable form (WG) and a
method of manufacturing the same”. App 655 was cited, before
the Controller of Patents, as the closest prior art in third party
pre-grant oppositions to the suit patent, as divesting the suit
patent of novelty and inventive step, but was distinguished by
the Controller in his order dated 11 April 2017, holding, inter
alia, thus :
“Patent. The ‘655 application disclosed discloses a fungicide
composition comprising 80% Sulphur on a dry basis as described
in claim 1 thereof. ‘655 application further discloses that the
composition, as described and claimed therein, was effective in
reducing the intensity of diseases on the aerial parts of plants at a
low concentration. On the other hand, the subject patent provides
a plant growth or fertilizer composition with a high loading of
sulphur in the range of 82% to 98%. The ‘655 application
nowhere discloses a composition with a high loading of sulphur
as high as 82% to 98% by weight. The ‘655 application provides a
foliar application of Sulphur for pest control, whereas the subject
patent provides sulphur composition for soil application to
facilitate sulphate conversion for ready uptake by the plants for
their growth and high yield.”
(viii) The “Background of the Invention”, containing the field

of the invention, description of related art, summary of the
invention and the Claims in the suit patent read thus:
“BACKGROUND OF INVENTION
1. FIELD OF THE INVENTION

The present invention relates to an agricultural composition
comprising an effective amount of a sulphur active ingredient and
at least one dispersing agent.
2. DESCRIPTION OF THE RELATED ART

All the crops need balanced fertilization and presently high
emphasis is laid on N-P-K as major nutrients for fertilizer
applications. However, in the past couple of years sulphur has
gained importance as a fourth major nutrient and its requirement
in various crops and soils is increasing world wide due to the
decrease in sulphur emissions and hence lower depositions into
Signature Not Verified the soil.
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
Sulphur is known as an elemental fertilizer for feeding plants and
is an essential component of certain vitamins and enzymes of
plants. Sulphur, together with phosphorus and nitrogen takes part
in the synthesis of certain plant proteins. Sulphur is insoluble in
water, is easily inflammable and also displays irritable action on
the human body. These properties of sulphur influence both its
production as well as its use in the agricultural field.
Sulphur is also used as a rectifier of certain, structural
characteristics of the. soil, including in particular its pH, which it
shifts towards acidic values for alkaline soils. Sulphur is naturally
present in the soil as a component of certain salts. When sulphur
is oxidized, to its sulphate form it serves as an essential nutrient
for plant growth as sulphate is the only form in which plants can
take up sulphur.
Presently, sulphur is typically blended with other granular
fertilizers such as phosphates, nitrates, urea and potash among
others to provide it in a form suitable for application to the soil.
Sulphur is available commercially as prills, soluble sulphur
liquids, wettable powders and micronized powders. These
compositions are then applied to the soil by various means such as
broadcasting or banding to supply the soil with sulfur, as well as
additional nutrients found in the granular fertilizers.
One problem associated with the use of these conventional
compositions is that they need to be applied in very high dosages.
The applicable dosage of these conventional compositions per
acre is very high and can extend from about 10kg / acre for
Sulphur bentonite compositions to about 25 kg per acre for
Sulphate based fertilizers and goes all the way to more than 100
kg/acre in case of gypsum. Also since these conventional
compositions are used in high dosages there is an increased
possibility of leaching in the soil making it unavailable to the
plant for uptake. Large amount of money is being spent for drip
and sprinkler irrigation for several horticultural crops and the use
and practice of drip irrigation is increasing considerably.
However, the conventional fertilizers comprising sulphur or
sulphur plus bentonite mixtures cannot be applied through drip
irrigation as the particle size of these compositions are large and
the particles do not disperse in water, causing nozzle clogging in
the irrigation equipment and resulting in a non-homogenous tank
mixture at the time of application. These conventional
compositions such as pellets and wettable powders do not exhibit
uniform suspension resulting in uneven coverage on the plant and
thereby affecting and minimizing the bio-efficacy of the product.
They also need to be applied two to three months in advance so as
to ensure timely conversion to sulphate and its uptake by the plant
for which there is additional application and cost.
Conventionally, acids such as sulfuric acid, nitric acid and/or
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
phosphoric acid and ammonia (anhydrous) are used to produce
these conventional fertilizers. The use of these chemicals creates a
potentially hazardous environment for production of the fertilizer.
In developing countries, these chemicals may be less available
with the consequence that fertilizer must be imported at a
considerable expense and crop yields are reduced in areas where
food is most needed.
Sulphur has also been incorporated in fertilizer compositions for a
different purpose. Specifically, sulphur has been used in the
manufacture of compositions such as Sulphur bentonite pellets.
Calcium Sulphate, Ammonium Sulphate and other sulphate based
compositions of fertilizers, the process of conversion of Sulphur
to sulphate form is slow and sulphate is the only form in which
plants can take up sulphur. In the conventional sulphur based
fertilizers it is observed that sulphur is not timely converted into
sulphate and hence is not readily available to the plant.
There is a need, therefore, to develop a composition which
converts sulphur to its sulphate form almost instantly to be
available for uptake by the plants and which delivers sulphur and
other nutrients uniformly and effectively to the soil and the plant
does not need to be applied in advance or as an additional
application and can be applied with ongoing applications. Also
there is a need to reduce the dosage substantially so as to develop
a composition which is economical to the farmers. The
composition exhibits a good suspension and dispersion properties
in water and soil moisture so as to be miscible with other soluble
fertilizers and hence applicable through drip and sprinkler
irrigation to ensure a uniform spray and availability.
SUMMARY OF THE INVENTION:

The present invention relates to a novel composition for
agricultural use comprising an effective amount of a sulphur
active ingredient and an at least one dispersing agent. According
to an embodiment, the sulphur active ingredient is in the range of
about 40% to about 98% (w/ w) and the at least one dispersing
agent is in the range of about 2% to about 60% (w/w).
According to an embodiment the agricultural composition is used
as at least one of a fertilizer composition, a nutrient composition,
a plant strengthener composition, a plant protectant composition,
a soil conditioner composition and a yield enhancer composition.
According to an embodiment, the agricultural composition is
formulated in a form selected from a group comprising at least
one of wettable powders, water dispersible granules, dusting
powders, suspension concentrates, emulsifiable concentrates,
tablets, liquids and oil suspensions. According to an embodiment
the agricultural composition is a water dispersible granule
composition.
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
According to an embodiment the invention also relates to a
method of treating the plant by applying the agricultural
composition primarily to the basal and also to the foliar parts of
the plant.
I Claim:
1. An agricultural composition for application to the soil that

converts Sulphur to its sulphate form instantly to be available for
uptake by the plants, the agricultural composition comprising: an
effective amount of a Sulphur active ingredient in a range of 82%
to 98% (w/w) and at least one dispersing agent in a range of 2%
to 18% (w/w); wherein the said composition is in a form of water
dispersible granules and wherein the water dispersible granules
are in a size range of 0.1 to 2.5 mm and comprise particles in a
size range of 2 microns to 12 microns.
2. The agricultural composition as claimed in claim 1 wherein, at

least one dispersing agent is selected from a group comprising
polyyinylpyrrolidone, polyvinylalcohol, lignosulphonates, phenyl
naphthalene sulphonates, ethoxylated alkyl phenols, ethoxylated
fatty acids, alkoxylated linear alcohols, polyaromatic sulfonates,
sodium alkyl aryl sulfonates, glyceryl esters, maleic anhydride
copolymers, phosphate esters, condensation products of aryl
sulphonic acids and formaldehyde, condensation products of
alkylaryl sulphonic acids and formaldehyde, addition products of
ethylene oxide and fatty acid esters, salts of addition products of
ethylene oxide and fatty acid esters, sulfonates of condensed
naphthalene, lignin derivatives, naphthalene formaldehyde
condensates, sodium salt of isodecylsulfosuccinic acid half ester,
polycarboxylates, sodium alkylbenzenesulfonates, sodium salts of
sulfonated naphthalene, ammonium salts of sulfonated
naphthalene, salts of polyacrylic acids, salts of phenolsulfonic
acids and salts of naphthalene sulfonic acids.
3. The agricultural composition as claimed in claim 1, wherein the

composition further optionally comprises a wetting agent in the
range of 0.1% to 5% (w/w); a binding agent in the range of 0.1%
to 7% (w/w); and a filler in the range of 0.1% to 5% (w/w).
4. The agricultural composition as claimed in claim 3, wherein

the wetting agent is selected from a group comprising phenyl
naphthalene sulphonates, alkyl naphthalene sulfonates, sodium
alkyl naphthalene sulfonate, sodium salt of sulfonated
alkylcarboxylate, polyoxyalkylated ethyl phenols,
polyoxyethoxylated fatly alcohols, polyoxyethoxylated fatty
By:AJIT KUMAR
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Date:24.03.2024 10:50
amines, lignin derivatives, alkane sulfonates, alkylbenzene
sulfonates, salts of polycarboxylic acids, salts of esters of
sulfosuccinic acid, alkylnaphthalenesulphonates,
alkylbenzenesulfonates, alkylpolyglycol ether sulfonates, alkyl
ether phosphates, alkyl ether sulphates and alkyl sulfosuccinic
monoesters.
5. The Agricultural composition as claimed in claim 3, wherein

the binding agent is selected from one or more of polyvinyl
alcohols, phenyl naphthalene sulphonate, lignin derivatives,
polyvinylpyrrolidone, polyalkylpyrrolidone,
carboxymethylcellulose, xanthan gum, polyethoxylated fatty
acids, polyethoxylated fatty alcohols, ethylene oxide copolymer,
propylene oxide copolymer, polyethylene glycols and
polyethylene oxides.
6. The agricultural composition as claimed in claim 3, wherein

the filler is selected from one or more of bentonites, sub-
bentonites, attapulgites, kaolinites, montmorillonites, bauxite,
hydrated aluminas, calcined aluminas, diatomaceous earth, chalk,
fuller's earth, dolomite, kiesulguhr, loess, prophyllites, talc,
vermiculites, limestone, natural and synthetic silicates, silicas and
china clay.
7. The agricultural composition as claimed in claim 1 or 3,

wherein the composition further optionally comprises an additive
in the range of about 0.01 % to about 50% (w/w).”
(ix) The suit patent arose out of the need to develop a

fertilizer composition which could convert sulphur to sulphate
almost instantaneously, so as to be available for uptake by
plants. This would overcome one of the most serious
drawbacks in existing sulphur based fertilizers.
(x) The bibliographic details of the suit patent are as under:

Bibliography of Indian Patent No. 282429 (filed as
Indian Patent Application No 40/MUM/2007)
Filing date 08/01/2007
Date of publication 02/02/2007
(U/S 11 A)
Date of issuance of 17/05/2007
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
First Examination
Report (FER)
Date of Filing of 06/05/2008
response to First
Examination Report
(FER) (Reply to
FER)
Date of Grant 11/04/2017
Date of Publication 14/04/2017
of grant of Patent
u/S 43(2)
(xi) Among the advantages of the claim in the suit patent over
prior art were
(a) reduced dosage,
(b) increased efficacy,
(c) immediate conversion of sulphur into sulphate for
ready uptake by plants, and
(d) usability through drip and sprinkler irrigation
systems.
(xii) The subject matter of the suit patent was, therefore, an

agricultural composition,
(a) with an effective amount of sulphur as active
ingredient,
(b) along with at least one dispersing agent,
(c) in the form of water dispersible granules,
(d) having
(i) specific granule size, and
(ii) specific particle size.

By:AJIT KUMAR
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Date:24.03.2024 10:50
(xiii) The composition of the invention claimed in the suit
patent comprises
(a) sulphur as an active ingredient in the range 82% to
98% (w/w) and
(b) at least one dispersing agent in the range 2% to
18%(w/w),
in the form of WDGs, of a size in the range of 0.1 to 2.5 mm,
comprising particles of the size 2 µ to 12 µ. Additionally, it
could comprise at least one wetting agent, a binding agent, a
filler and an organic additive.
(xiv) The product corresponding to the claimed composition in

the suit patent could be used as a fertilizer, a nutrient, a plant
strengthener, a soil conditioner and a yield enhancer. It had the
following advantages over prior art:
(a) It delivered sulphur uniformly and effectively to

the soil.
(b) There was no need for prior application.
(c) Significantly less dosage of sulphur was required.

This reduced costs.
(d) It could be used with the drip and sprinkler

irrigation system which would ensure uniform spray and
availability.
By:AJIT KUMAR
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Date:24.03.2024 10:50
(xv) There are six examples in the complete specification of
the suit patent, which describe the claimed invention. The
specifications also indicate the tests by which to determine the
suspensibility and dispersibility of the composition. The
manner of application of the composition to the soil so as to
result in significance crop yield increase with greater nutrient
content is also indicated in the specifications.
(xvi) The rapid conversion of sulphur to sulphate by the

composition in the suit patent, which results in a significantly
enhanced yield and improved physiological plant parameters,
with surprisingly reduced dosages for field application, which
have never been observed with any sulphur based fertilizers
known thus far.
(xvii) The suit patent has nine claims, of which Claim 1 is

independent and Claims 2 to 9 are dependent on Claim 1.
(xviii)The salient features of Claim 1 are that it is/has

(a) an agricultural composition for soil application,
(b) a composition which converts sulphur to sulphate
instantly for ready uptake by plants,
(c) sulphur as an active ingredient in the range 82% to
98% (w/w),
(d) at least one dispersing agent of 2% to 18% w/w, in
the form of WDGs, which
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
(i) are of size 0.1 to 2.5 mm, which, in turn,
(ii) contain particles of size 2 µ to 12 µ.
(xix) Dr. Pietro Zannucoli, the inventor of the US 5599373

(US’373) patent, which was one of the cited prior arts during
the pre-grant opposition to the application for registration of the
suit patent, has, by affidavit, confirmed the novelty and
inventiveness of the invention claimed in the suit patent vis-à-
vis prior art. He has further confirmed that the invention in the
suit patent would not, from the specifications in the suit patent,
be obvious to a person skilled in the art, because achieving
Sulphur particles of size below 12 µ with high loading of
sulphur inside WDGs was unknown in the field. The high
possibility of explosion if the sulphur size were reduced would
also be an intimidating factor to a person seeking to use sulphur
of reduced size. Reliance has also been placed on the expert
affidavit dated 31 December 2021 of Dr. Sunil Kumar Khatter, a
former scientist at Hindustan Insecticides Ltd.
(xx) The suit patent has weathered the following pre- and
post-grant oppositions:
Bibliography of examination milestones and oppositions
against Indian Patent No. 282429 (filed as Indian Patent
Application No 40/MUM/2007)
First Examination Report (FER) First Examination Report
(FER)
Response to First Examination Response to First
Report (Reply to FER) Examination Report (Reply
to FER)
Pre-grant oppositions
By Jaishil Sulfur & Chemical By Jaishil Sulfur &
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
Industries Chemical Industries
By Mr. Vilash Shetty By Mr. Vilash Shetty
By M/s Safex Chemicals India By M/s Safex Chemicals
Pvt. Ltd. India Pvt. Ltd.
By Haryana PesticidesBy Haryana Pesticides
Manufacturers Association Manufacturers Association
By M/s Jailaxmi Industries By M/s Jailaxmi Industries
By M/s Swati Petro Products By M/s Swati Petro
Pvt. Ltd. Products Pvt. Ltd.
By Excel Crop Care By Excel Crop Care
Date of Grant Date of Grant
Post-Grant Publication u/s 43(2) Post-Grant Publication u/s
43(2)
Post-Grant Opposition
By M/s Safex Chemicals India By M/s Safex Chemicals
Pvt. Ltd. India Pvt. Ltd.
By Haryana Pesticides By Haryana Pesticides
Manufacturers Association Manufacturers Association
By Dharmaj Crop Guard By Dharmaj Crop Guard
Limited/Defendant No. 1 Limited/Defendant No. 1
By Crop Life Science Limited By Crop Life Science
Limited
By Excel Crop Care By Excel Crop Care
By Solar Chemferts Pvt. Ltd. By Solar Chemferts Pvt.
Ltd.
The grounds raised by the defendants in the present case, to

seek to discredit the validity of the suit patent, are the very same
grounds which were raised and rejected in the above
proceedings. As such, a clear prima facie case, in the plaintiff’s
favour, exists even on this score.
(xxi) The Controller of Patents has, thus, in the above

decisions, clearly found the invention in the suit patent to be
novel and inventive vis-à-vis all known prior arts. The
Controller has found the suit patent not to be vulnerable to
invalidity either on the ground of anticipation by prior
By:AJIT KUMAR
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Date:24.03.2024 10:50
publication under Section 25(1)(b)3 or anticipation by prior
claiming under Section 25(1)(c)4, or on account of its having
been publicly known prior in point of time under Section
25(1)(d)5 or on the ground of obviousness or lack of inventive
step under Section 25(1)(e)6 or for insufficiency of disclosure or
want of proper disclosure under Sections 25(1)(g)7 or (h)8,
among others.
(xxii) Patents, corresponding to the suit patent, have been

granted to the plaintiff in USA, Australia, New Zealand,
Vietnam, Malaysia, South Korea and China, in each case under
the title “Novel Agricultural Composition”. Thus, the suit
3
25. Opposition to the patent.—
(1) Where an application for a patent has been published but a patent has not been granted,
any person may, in writing, represent by way of opposition to the Controller against the grant of
patent on the ground—
***
(b) that the invention so far as claimed in any claim of the complete specification
has been published before the priority date of the claim—
(i) in any specification filed in pursuance of an application for a patent
made in India on or after the 1st day of January, 1912; or
(ii) in India or elsewhere, in any other document:
Provided that the ground specified in sub-clause (ii) shall not be available where such
publication does not constitute an anticipation of the invention by virtue of sub-section
(2) or sub-section (3) of Section 29;
(c) that the invention so far as claimed in any claim of the complete specification is
claimed in a claim of a complete specification published on or after the priority date of
the applicant's claim and filed in pursuance of an application for a patent in India, being a
claim of which the priority date is earlier than that of the applicant's claim
(d) that the invention so far as claimed in any claim of the complete specification
was publicly known or publicly used in India before the priority date of that
claim.
(e) that the invention so far as claimed in any claim of the complete specification
is obvious and clearly does not involve any inventive step, having regard to the matter
published as mentioned in clause (b) or having regard to what was used in India before
the priority date of the applicant's claim;
7
***
(g) that the complete specification does not sufficiently and clearly describe the
invention or the method by which it is to be performed;
(h) that the applicant has failed to disclose to the Controller the information
required by Section 8 or has furnished the information which in any material particular
Signature Not Verified was false to his knowledge;
By:AJIT KUMAR
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Date:24.03.2024 10:50
patent, and the invention claimed therein, stood validated not
only in India but also in foreign jurisdictions.
(xxiii)The suit patent has also been extensively worked in India.
(xxiv) The plaintiff, therefore, has a statutory right to injunct

others from manufacturing or dealing with any product
corresponding to the invention claimed in the suit patent.
(xxv) The composition claimed in the suit patent is

manufactured and marketed by the plaintiff under the brand
name FERTIS WG, with the following composition:
 Water dispersible granules
 Sulphur (Active Ingredient): 82-98%
 Dispersing Agent: 2-10%
 Granule size: between 0.1 to 2.5 mm
 Particle size: between 2 to 12 µ
The formulation is applied through drip irrigation or

broadcasting and direct application to the soil.
(xxvi) On coming to know that Defendants 1 and 3 (Dayal

Fertilizers Pvt Ltd, hereinafter referred to as “Dayal” and Mitul
Industries, hereinafter referred to as “Mitul”) were seeking to
infringe the suit patent IN’429, the plaintiff issued a legal notice
to said defendants calling on them to cease and desist from
doing so. Defendants 1 and 3, in their replies to the cease and
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
desist notice, denied infringing the suit patent and further
contested the validity of the suit patent on the ground that it was
based entirely on known prior arts and was not, therefore, either
novel or innovative.
(xxvii) Though the packs of the defendants’ Nano Sulf-

WG product itself indicated that its composition was identical
to that of the plaintiff’s FERTIN WG, the plaintiff had its
product, as well as the defendants’ product, tested by Jubilant
Pharma & Chemical Lab (OPC) Pvt. Ltd. (JPCL), an
independent laboratory. The test report dated 14 June 2019 of
JPCL indicated that the product contained
(a) 91.23% Sulphur content by mass,
(b) 8.04% dispersing agent concentration by mass,
(c) particle size distribution as under:
(i) D10 value: 0.587 µ
(ii) D50 value: 5.171 µ and
(iii) D90 value: 20.328 µ,
with
(i) 1.16% granules passing through 0.1 mm
sieve,
(ii) 67.15% granules retained on 0.1 mm sieve,
(iii) 31.69% granules retained on 0.15 mm sieve
and
(iv) nil granules retained on 2.5 mm sieve.

By:AJIT KUMAR
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Date:24.03.2024 10:50
(xxviii) The JPCL report was shared with Dr P K Patanjali,
former Head Formulation Scientist at the Institute of Pesticide
Formulation Technology (IPFT). Dr Patanjali also testified, on
affidavit, that the defendants’ product infringed the suit patent.
From JPCL’s test report and Dr Patanjali’s affidavit, it became
apparent that the defendant’s product contained 91.23% by
mass of Sulphur and 8.04% by mass of dispersing agent, with
about 99% of the granules of 0.1 mm to 2.5 mm in size and
almost 54% of particles between 2 µ and 12 µ in size. These
parameters being within the parameters of the claim in the suit
patent, it was clear that Nano Sulf-WG infringed the suit patent.
(xxix) The defendants were, therefore, infringing the suit patent

within the meaning of Section 48 of the Patents Act, 1970.
(xxx) On merits, on the aspect of validity of the suit patent vis-

à-vis the claim in App 655, it is submitted as under:
(i) App 655 is a fungicide, for foliar application,

whereas the compound in the suit patent is a fertilizer for
soil application.
(ii) In App 655, Sulphur is converted to SO2, and

remains on the leaves. In the suit patent composition,
sulphur is converted to sulphate by microorganisms
present in the soil, for assimilation by the roots of the
plant.
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(iii) App 655, inasmuch as it is a fungicide, teaches a
larger particle size of 0.1 to 20 µ, so as to cover larger
foliar area and exhibit greater fungicidal action.
(iv) Sulphur, in the soil, as provided by the composition

in the suit patent, is converted into sulphate by soil
microorganisms. In the case of App 655, there is no
conversion of sulphur into sulphate, when it is used as a
fungicide by way of foliar application.
(v) Though App 655 recognizes that fungicidal

compositions containing 80-82% sulphur were
conventionally manufactured in WDGs 5 to 10 µ in size,
it teaches that such size and range adversely affects the
bioavailability of sulphur as a fungicide and, therefore,
suggests increasing the particle size. App 655, therefore,
taught away from the suit patent, and not towards it. That
apart, App 655 does not deal with dispersibility, or
conversion of sulphur into sulphate.
(vi) It would not be obvious, for a person skilled in the

art, from the teachings in App 655, to synthesis the suit
patent, by loading sulphur to 98% and keeping particle
size in the range of 2 to 12 µ. Besides, the fact that
sulphur is inflammable and explosive would also deter a
person skilled in the art to reduce the particle size of
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sulphur or increase its loading, beyond that taught by App
655.
(vii) The observation, in App 655, that sulphur 90% w/v

was already known, was in the context of fungicide. The
suit patent was not for sulphur, but for a composition
comprising sulphur loading coupled with recommended
particles and granule size. It is the composition as a
whole which is inventive. The onus is on the defendants
to establish that the composition, as a whole, is obvious
from prior art. The mere fact that an individual
constituent of the composition may be obvious, or
known, cannot make the entire composition obvious and
therefore invalid. The combination of known integers
could also be new and inventive. Reliance is placed, for
this context, on the judgment in F. Hoffmann-La Roche
Ltd v. Cipla Ltd9 (“Roche”, hereinafter).
(viii) Even if, therefore, sulphur-based fertilizers, with

over 90% sulphur loading were known in the prior art,
they failed to provide the solution provided by the suit
patent. App 655 did nothing towards improving of
dispersibility or conversion of sulphur into sulphate by
any different mode of oxidation other than oxidation by
the soil bacteria Thiobacillus, which acted when the
composition in the suit patent was applied to the soil.

9
2016 (65) PTC 1 (Del) (DB)
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(ix) The knowledge of agricultural compositions
containing 90% sulphur, even if existing prior in point of
time, was in the context of fungicides, and not in the
context of fertilisers.
(xxxi) Reliance was placed, by the defendants, on Fertiliser

Control Order dated 16 December 2006 (hereinafter referred to
as “the FCO 2006”), which permitted use of sulphur of up to
90% by weight in the form of powder or as granules. The
reliance was misplaced. The FCO 2006 merely recommended a
minimum standard of sulphur composition (90% by weight) in
powder or granules-based server compositions. Further, the
FCO 2006 referred to a particle size of 4 mm (4000 µ) and the
use of Bentonite as an inert filler. The suit patent was not
restricted to envisaging a higher percentage of sulphur in the
final product but included other essential elements in Claim 1.
The FCO 2006 did not disclose the particle size, granule size,
type of formulation and high loading of sulphur. The FCO 2006
could not, therefore, be regarded as teaching or suggesting the
features of the embodiments in the suit patent.
(xxxii) The defendants had also cited Section 3(d)10 of the

Patents Act. Section 3(d) has no application to the present case,
10
3. What are not inventions.—The following are not inventions within the meaning of this Act,—
***
(d) the mere discovery of a new form of a known substance which does not result
in the enhancement of the known efficacy of that substance or the mere discovery of any
Signature Not Verified new property or new use for a known substance or of the mere use of a known process,
By:AJIT KUMAR
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as it pertains to a new composition, and not a new form of a
known substance.
(xxxiii) Inasmuch as the defendants had not explained why

a person skilled in the art would, from the teachings in App 655,
manufacture the fertiliser composition claimed in the suit
patent, when App 655 did not even teach how to improve the
rate of conversion from sulphur to sulphate.
(xxxiv) The features in the invention claimed in the suit

patent, which are absent in App 655, are, therefore,
(a) the requisite teaching to arrive at the fertiliser
composition claimed in the suit patent,
(b) the requisite teaching to improve the efficacy of
conversion of sulphur into sulphate,
(c) increase loading of sulphur to 90%,
(d) application of the teaching to soil,
(e) reduction of particle size and range (in fact, App
655 taught to the contrary) and
(f) therefore, increase of sulphur loading to 90% and
reduction of particle size of sulphur.
It was absurd to suggest that all these are apparent from the
teachings in App 655 and the FCO 2006.
(xxxv) The defendants had also placed reliance on an

article published in September 1995 in the journal EXTOXNET,
machine or apparatus unless such known process results in a new product or employs at
Signature Not Verified least one new reactant.
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Date:24.03.2024 10:50
as well as on an article titled Technical Bulletin: Oxidation of
Elemental Sulphur in Soils by Boswell, et al. Neither of these
taught, suggested or rendered the suit patent composition as
obvious. None of them envisaged a combination of highly
sulphur loading introduced particle size range, as envisaged by
the suit patent, especially given the explosive character of
sulphur.
(xxxvi) Given the fact that the suit patent had been granted
in several other international jurisdictions, and had weathered
successfully a number of pre-grant or post-grant oppositions, a
prima facie case for grant of injunction was in any case made
out. The degree of proof which, in such circumstances, would
have to be discharged by the defendants to unseat this prima
facie case was extremely high. All that the defendants have
done is to cite prior art which has already been considered by
the Controller in earlier pre-grant and post-grant opposition
proceedings and rejected. Citing the same prior art before this
Court cannot make out a credible challenge to the validity of the
suit patent. Reliance was also placed, in this context, on the
affidavit of Dr. Zanuccoli who confirmed one of the most
inventive features of the composition claimed in the suit patent
as being the high concentration of sulphur with an extremely
small particle size.
(xxxvii) The fact of infringement stood established by the

reports of the JPCL and Sriram Institute for Industrial Research
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(SIFIR), who found that the defendant’s product contained all
integers of Claim 1 of the suit patent. The fact of infringement
was also corroborated by the affidavit of Dr. Patanjali.
5. For all the aforesaid reasons, Mr. Hemant Singh praised that,
pending disposal of these suits, the defendants be restrained from
manufacturing of selling any product, including Nano Sulf-WG, which
infringes the suit patent.
The legal position regarding grant of interim injunctions in patent suits
6. Before proceeding to the submissions of learned Counsel for the

defendants, the legal position in that regard should be understood.
7. Somewhat peculiarly, the Patents Act does not define

infringement. Section 49 states that patent rights are not infringed
when the invention claimed in the patent is used temporarily or
accidentally on foreign vessels, etc. The positioning of Section 49
indicates that the meaning of “infringement”, for the purposes of
patents, has to be gleaned from Section 48, which sets out the rights
conferred on a patentee by the Patents Act. Where the subject matter
of a patent is a product, as in the present case, Section 48(a) confers,
on the patentee, “the exclusive right to prevent third parties, who do
not have his consent, from the act of making, using, offering for sale,
selling or importing for those purposes that product in India”. From
this, it emerges that, if a third party, without the consent of the
patentee, makes, uses, offers for sale, sells or imports into India, for
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those purposes, the patented product, such act would amount to
“infringement”.
8. Section 107(1)11 of the Patents Act makes available, as a ground

of defence in an infringement suit, every ground on which the patent
may be revoked, under Section 64. The defendants in the present case
invoke, in a sense, clauses (a), (d), (e), (f), (h), (i) and (j)12 of Section
64(1).
9. Thus, if a defendant in an infringement suit can lay a challenge

to the validity of the plaintiff’s patent on any of the grounds envisaged
11
107. Defences, etc. in suits for infringement. –
(1) In any suit for infringement of a patent, every ground on which it may be revoked under
Section 64 shall be available as a ground for defence.
12
64. Revocation of patents. –
(1) Subject to the provisions contained in this Act, a patent, whether granted before or after
the commencement of this Act, may, be revoked on a petition of any person interested or of the
Central Government or on a counter-claim in a suit for infringement of the patent by the High Court
on any of the following grounds, that is to say,—
(a) that the invention, so far as claimed in any claim of the complete specification,
was claimed in a valid claim of earlier priority date contained in the complete
specification of another patent granted in India;
***
(d) that the subject of any claim of the complete specification is not an invention
within the meaning of this Act;
(e) that the invention so far as claimed in any claim of the complete specification is
not new, 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
documents referred to in Section 13;
(f) that the invention so far as claimed in any claim of the complete specification is
obvious or does not involve any inventive step, having regard to what was publicly
known or publicly used in India or what was published in India or elsewhere before the
priority date of the claim;
***
(h) that the complete specification does not sufficiently and fairly describe the
invention and the method by which it is to be performed, that is to say, that the
description of the method or the instructions for the working of the invention as contained
in the complete specification are not by themselves sufficient to enable a person in India
possessing average skill in, and average knowledge of, the art to which the invention
relates, to work the invention, or that it does not disclose the best method of performing it
which was known to the applicant for the patent and for which he was entitled to claim
protection;
(i) that the scope of any claim of the complete specification is not sufficiently and
clearly defined or that any claim of the complete specification is not fairly based on the
matter disclosed in the specification;
(j) that the patent was obtained on a false suggestion or representation;
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in Section 64(1), he may seek, on that basis, to defend himself against
the charge of infringement laid by the plaintiff.
10. Thus far, the statute is clear, and comprehensible. Of greater

importance, and relevance, however, is the nature, and the strength, of
the defendant’s challenge to the validity of the plaintiff’s patent, as
envisaged as a ground of defence under Section 107(1).
11. It has been held, classically, that the defendant has only to raise
a “credible challenge” to the validity of the suit patent to successfully
ward off a prayer for interim injunction. It must be shown, expressed
otherwise, that the validity of the suit patent is “vulnerable” to
challenge. In F. Hoffmann-La Roche Ltd v. Cipla Ltd13, it was held:
“55. The question before this Court is when can it be said that
the defendant has raised a credible challenge to the validity of a
patent held by the plaintiff in an infringement action? During the
course of the argument it was suggested by counsel that the
challenge had to be both strong and credible. Also, the defendant
resisting the grant of injunction by challenging the validity of the
patent is at this stage required to show that the patent is
“vulnerable” and that the challenge raises a “serious substantial
question” and a triable issue. Without indulging in an exercise in
semantics, the Court when faced with a prayer for grant of
injunction and a corresponding plea of the defendant challenging
the validity of the patent itself, must enquire whether the defendant
has raised a credible challenge. In other words, that would in the
context of pharmaceutical products, invite scrutiny of the order
granting patent in the light of Section 3(d) and the grounds set out
in Section 64 of the Patents Act 1970. At this stage of course the
Court is not expected to examine the challenge in any great detail
and arrive at a definite finding on the question of validity. That will
have to await the trial. At the present stage of considering the
grant of an interim injunction, the defendant has to show that the
patent that has been granted is vulnerable to challenge.
Consequently, this Court rejects the contentions of the plaintiffs on

13
159 (2009) DLT 243 (DB)
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this issue and affirms the impugned judgment of the learned Single
Judge.”
(Emphasis supplied)
12. Contradistinguishing the position from that which obtains under

the Trade Marks Act, 1999, another Division Bench of this Court has,
very recently, observed, in Freebit AS v. Exotic Mile Pvt Ltd14, thus:
“22. It is also material to note that unlike the Trade Marks Act,
1999, where grant of a trademark leads to a presumption of its
validity; grant of patent does not lead to any statutory presumption
as to its validity. Thus, if a defendant raises a credible challenge to
the validity of the patent, the same is relevant for deciding whether
any interim orders restraining the defendant from using the patent
in question, is warranted.”
13. It is also settled that, while dealing with an application for

interlocutory relief, the Court is not expected to scan the entire
evidence, and balance the evidence of one side against the other,
threadbare, thereby leaving little, if anything, for being examined
during and after trial. The matter has to be viewed prima facie. In
Wander Ltd v. Antox India Ltd15, the Supreme Court held that
“usually, the prayer for grant of an interlocutory injunction is at a
stage when the existence of the legal right asserted by the plaintiff and
its alleged violation are both contested and uncertain and remain
uncertain till they are established at the trial on evidence.”
14. While adjudicating applications for grant of interim relief in

patent suits, it would be appropriate to bear in mind the following
14
MANU/DE/1007/2024
15
1990 Supp SCC 727
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exordium, contained in Monsanto Technology LLC v. Nuziveedu
Seeds Ltd16:
“21. Manifestly, the counterclaim of the defendants was never
considered by the learned Single Judge as only notice had been
issued on the same. The plaintiffs had preferred an appeal against
the nature of the injunctive relief with regard to the issue of licence
fee/trait value, now conceded by the plaintiffs. We see no reason to
reject the submission of Dr Singhvi that it stands to reason why the
plaintiffs would have consented to a summary adjudication of an
existing patent and risk losing the same without any merit
adjudication. The defendants themselves had contended in their
appeal that the issues were complicated requiring expert evidence
to be considered in a full-fledged trial. The Division Bench
therefore ought to have confined its adjudication to the question
whether grant of injunction was justified or unjustified in the facts
and circumstances of the case. The Division Bench ought not to
have examined the counterclaim itself usurping the jurisdiction of
the Single Judge to decide unpatentability of the process Claims 1-
24 also in the summary manner done. Summary adjudication of a
technically complex suit requiring expert evidence also, at the
stage of injunction in the manner done, was certainly neither
desirable nor permissible in the law. The suit involved complicated
mixed questions of law and facts with regard to patentability and
exclusion of patent which could be examined in the suit on the
basis of evidence.
22. Section 64 of the Act provides for revocation of patent

based on a counterclaim in a suit. It necessarily presupposes a valid
consideration of the claims in the suit and the counterclaim in
accordance with law and not summary adjudication sans evidence
by abstract consideration based on textbooks only. The Civil
Procedure Code provides a detailed procedure with regard to the
manner in which a suit instituted under Section 9, including a
counterclaim has to be considered and adjudicated. The Code
mandates a procedure by settlement of issues, examination and
cross-examination of witnesses by the parties, including
discovery/inspection of documents, culminating in the hearing of
the suit and decree. A suit can be disposed of at the initial stage
only on an admission inter alia under Order 12 Rule 6 or when the
parties are not in issue under Order 16 Rule 1 and the other
grounds mentioned therein, none of which are applicable herein.
We are therefore satisfied that the Division Bench ought not to
have disposed of the suit in a summary manner by relying on
documents only, extracted from the public domain, and not even
16
(2019) 3 SCC 381
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filed as exhibits in the suit, much less examination of expert
witnesses, in the facts of the present case. There is no gainsaying
that the issues raised were complicated requiring technological
and expert evidence with regard to issues of chemical process,
biochemical, biotechnical and micro-biological processes and
more importantly whether the nucleic acid sequence trait once
inserted could be removed from that variety or not and whether the
patented DNA sequence was a plant or a part of a plant, etc. are
again all matters which were required to be considered at the final
hearing of the suit.”
(Emphasis supplied)
15. In its order in AZ Tech (India) v. Intex Technologies (India)

Ltd17, the Supreme Court sounded this note of caution:
“1. Having read the order of the High Court of Delhi dated
th
10 March, 2017 passed in FAO(OS) No. 1/2017 we find that it is
virtually a decision on merits of the suit. We wonder if the High
Court has thought it proper to write such an exhaustive judgment
only because of acceptance of the fact that the interim orders in
Intellectual Property Rights (IPR) matters in the Delhi High Court
would govern the parties for a long duration of time and disposal
of the main suit is a far cry. This is a disturbing trend which we
need to address in the first instance before delving into the
respective rights of the parties raised in the present case.”
16. The Division Bench of this Court took note of these views
expressed by the Supreme Court in para 15 of the report in
Astrazeneca AB v. Intas Pharmaceuticals Ltd18, thus:
“15. Supreme Court, in order dated 16th August, 2017 in Civil
Appeal No. 18892/2017 titled AZ Tech (India) v. Intex
Technologies (India) Limited, commented on the disturbing trend,
of the orders of disposal of applications for interim relief in
Intellectual Property Rights matters governing parties for a long
time, with exhaustive judgments, virtually on merits of the suit,
being written and expressed the need for addressing the said
malady. In fact, suo moto Writ Petition (Civil) No. 8/2017 titled
Re: Case Management of Original Suits, was initiated in
pursuance to the said order and in which proceedings this Court
informed the Supreme Court of the remedial measures being taken.
17
2017 SCC OnLine SC 2143
18
(2021) 87 PTC 374 (DB)
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It was thus felt that the hearing of arguments in these appeals
should not go on endlessly and the order/judgment disposing of
these appeals, should not be exhaustive.”
(Emphasis supplied)
17. More recently, the Supreme Court again reiterated the same
sentiment, in Pernod Ricard India Pvt Ltd v. United Spirits Ltd19,
thus:
“5. At the insistence of counsel for the petitioner, we clarify
that it is well settled proposition of law that decisions on
interlocutory applications are only made to protect rival interests
pending suit. Somehow the interim applications itself are treated as
final decision but it is not so. In all such cases, interim
arrangements should be made and the trial should proceed rather
than to spend time only on interlocutory applications. That protects
the petitioner against the apprehension that the impugned judgment
may be cited in other Court qua petitioner's cases of a similar
nature.”
18. That said, there are IP suits and IP suits. There is no gainsaying
that, in many – indeed, most – cases, the axe falls, this way or that,
with the interim order, and there is little that survives thereafter. In a
vast majority of cases, the scales tilt so heavily, following an interim
order, that the parties come to the bargaining table. Much, therefore,
turns on interlocutory orders in intellectual property matters, and
Courts may, therefore, be forgiven if these orders are more prolix than
interlocutory orders passed in other suits.
19. I have chosen to enter this prefatory note, here, because, in the
present case, submissions, of fact and law, have travelled so far
outside the peripheries of legitimate interlocutory jurisdiction, that a
note of circumspection is required to be struck.

19
2023 SCC OnLine SC 1838
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20. I have my serious doubts regarding the advisability, or even
permissibility, of placing reliance on “expert affidavits” while
deciding applications for interlocutory relief in patent suits, and I
think the above passages from Monsanto Technology express similar
misgivings. In the present case, both sides have placed reliance on
affidavits of experts to support their case. Neither side admits the
veracity or correctness of the affidavits cited by the other. The
affidavits have not even been subjected to the exercise of admission
and denial. The experts have not been cross examined. I sincerely
doubt whether, in such circumstances, the prayer of the appellant for
grant of interim relief, and the merits of the opposition by the
defendant to such grant, can be decided on the basis of such “expert
evidence”.
21. Regarding the nature and character of expert evidence, the

Supreme Court, in State of Himachal Pradesh v. Jai Lal20, observed
thus:
“18. An expert is not a witness of fact. His evidence is really of
an advisory character. The duty of an expert witness is to furnish
the Judge with the necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of this criteria to the facts
proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with the other
evidence of the case. The credibility of such a witness depends on
the reasons stated in support of his conclusions and the data and
material furnished which form the basis of his conclusions.
19. The report submitted by an expert does not go in evidence

automatically. He is to be examined as a witness in court and has

20
(1999) 7 SCC 280
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to face cross-examination. This Court in the case of Hazi
Mohammad Ekramul Haq v. State of W.B.21 concurred with the
finding of the High Court in not placing any reliance upon the
evidence of an expert witness on the ground that his evidence was
merely an opinion unsupported by any reasons.”
(Emphasis supplied)
22. Albeit in the facts of that case, the Supreme Court, in State of
Maharashtra v. Damu22, held that “without examining the expert as a
witness in court, no reliance can be placed on (his testimony) alone”.
Relying on this principle, the Supreme Court, in Ramesh Chandra
Agrawal v. Regency Hospital Ltd23, held thus:
21. In State of Maharashtra v. Damu, it has been laid down that
without examining the expert as a witness in court, no reliance can
be placed on an opinion alone. In this regard, it has been observed
in State (Delhi Admn.) v. Pali Ram24 that “no expert would claim
today that he could be absolutely sure that his opinion was correct,
expert depends to a great extent upon the materials put before him
and the nature of question put to him”.
23. Specifically in patent infringement suits, fundamentally only

two issues arise for consideration, especially at the interim stage.
They are, firstly, whether the defendant’s product infringes the
plaintiff’s patent, and, secondly, whether the defendant has set up a
credible challenge to the validity of the plaintiff’s patent, as would
render it vulnerable to invalidation under Section 64 of the Patents
Act.
24. Both these considerations involve, essentially, comparison.

Infringement analysis involves comparison of the defendant’s product
21
AIR 1959 SC 488 : 1959 Supp (1) SCR 922
22
(2000) 6 SCC 269
23
(2009) 9 SCC 709
24
(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14
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with the suit patent, and validity analysis involves comparison of the
suit patent with prior art. In either case, the comparison is to be
premised, fundamentally, on the claims and disclosures in the suit
patent, and in the prior art. If, on the basis of such comparison, the
defendant manages to set up a credible challenge to the validity of the
suit patent, injunction cannot be refused by relying on untested and
disputed expert affidavits, with the expert cited by each party
deposing wholeheartedly in favour of the party concerned. Primacy
has to be accorded to the recitals contained in the complete
specifications of the patent.
25. I do not, therefore, propose to advert, in this order, to the

affidavits on which either side has placed reliance, as, till the
deponents of the affidavits are tested by cross examination, such
affidavits cannot, in my opinion, constitute the basis either for grant,
or for rejection, of interim injunction.
26. With that note, I now proceed to the submissions of learned

Counsel for the defendants.
Submissions of Mr. Bansal
27. Mr. Bansal, appearing for Defendant 2 in CS (Comm)

525/2021, submits thus:
(i) The very title of the suit patent, “Novel Agricultural

Composition”, encompasses both fertilizers and fungicides.
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(ii) The original claim in the suit patent, as filed with the
Patent Office, made no mention of conversion of sulphur to
sulphate, and claimed the concentration of sulphur, as the active
ingredient, to be 40 to 98%. The concentration was later
amended to 82 to 98%. The Summary of the Invention as
originally filed also declared that the composition was used as
at least one of “a fertilizer composition, a nutrient composition,
a plant strengthener composition, a plant protectant
composition, a soil conditioner composition and a yield
enhancer composition”. Plant protectant compositions naturally
include fungicides. The original Summary of the Invention also
disclosed that, “according to an embodiment, the invention also
relates to a method of treating the plant by applying the
agricultural composition primarily to the basal and also to the
foliar parts of the plant.” Thus, the composition claimed in the
unamended complete specifications of the suit patent was
clearly obvious from App 655.
(iii) To emphasize that the features of the claimed

composition in the suit patent were already part of App 655, Mr.
Bansal drew attention to the following recitals in the
“Background of the Invention” in the complete specifications of
App 655:
Fungicides are a known art for years, specially Sulphur
fungicides. Typically the known product i.e., Sulphur (WP) or
Sulphur (WG) contains Sulphur technical of about 60% to 90%)
along with blends of wetting/suspending agents and fillers. More
typically in India the product contains 80% Sulphur.
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
*****
The conventional product contains 80% Sulphur and the particle

size is typically approximately in the range of 4 to 15 microns
for - WP & 4-10 microns for WG.
*****
Sulphur is a contact fungicide, where the efficacy of the product

is improved when the surface area of the product is improved.
Due to the narrow particle size range of the particles of product
the efficacy of the product is restricted.
*****
Over the years as man learnt of the hazards of using pesticides

and the risks associated with this to mankind there is a growing
need to make the same products which have been used for years
in such an improved form so that it is more efficient letticacious
and reducing the risk to the user, thus a further
improved composition having better physical properties and
more efficient bioefficacy properties which is understood to be
due an efficient particle size as a result of increasing the range
of the particles and having more particles in the range of 0.5 to
4 microns which in turn increases the surface area of the
sulphur particles. Due to the product being a contact fungicide
this increase in contact area increases the bioeffectivness of the
product.
*****
The inventor has carried out continuous research to overcome

the drawbacks of the above product and processes in the
literature. The inventor has come out with an further improved
process having initial process upto manufacture fine particles of
sulphur as per art known to the industry. However for an
improved Sulphur WG formulation, a finished product, the
process is diverted from known art to an
improved version to provide a product having an Sulphur
composition with smaller particle size with a wider range of
particle size, but bigger Granule size, better bioefficacy, every
particle being coated with dispersing agent, wetting agent, free
flowing (pourable) properties, reducing dust by agglomeration,
reducing inhalation toxicity. This is also achieved by improving
chemical formulation.
*****
By:AJIT KUMAR
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Date:24.03.2024 10:50
The principle object of this invention is to provide an improved
process of manufacturing fungicide composition that is more
biologically efficacious than the conventiional conventional
formulation known in the art. Also the invention has a larger
particle size range with more percentage particles in the range
of 0.5 to 4 microns & in turn.
*****
Another object of the invention is to provide an improved

process of manufacturing Sulphur WG formulation having
larger surface area for the same weight of the particles resulting
in lesser dosage.
*****
Even though we have reduced particle size we have made

correct particle size range not to cause phytoxicity. Also by a
bigger size range the oxidation of sulphur particles is for a
longer time.
Among other things, the “Background of the Invention” in the

complete specifications of App 655 disclosed that Sulphur in 60
to 90% concentration w/w could act as a fungicide.
(iv) Mr. Bansal also drew attention to the “Description” of the

claim in the complete specifications of App 655, and the actual
claim, which read thus:
Description
Appearance: The product is brownish in colour and in a

granular, dry flowable form. Also known as Water Dispersible
Granule (WG) or WDG. The accepted nomenclature is "WG"
Properties
Specification Sulphur content is: 80% min
Suspensibility : 80% min
Wetting time : 60 sec max
Acidity less than 0.02%
Granule above 200 microns: 95%
Signature Not Verified Flow point: 0
By:AJIT KUMAR
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Date:24.03.2024 10:50
Particle size range 99% 0.5 micron to 7
microns
Benefits
1) Better bioefficiency
2) More surface area is available
3) Less quantity of product is required
4) Better flowability
5) Practically dust free
6) Reduced inhalation toxicity
7) Better bulk density
8) Reduces Sulphur residue to the environment
9) Less injurious to human being due to lesser inhalation
toxicity
10)Larger particle size range
11)Better adhesion property
12)Product is adapted to use practices by farmers
WE CLAIM:
1) An improved fungicidal/miticide formulation consisting of

the following ingredients which are mixed thoroughly to obtain
an improved formulation for making granules from micro
particles obtained by wet grinding the aqueous suspension
coating and subsequently drying in spray/fluidized bed spray
and fluid bed spray granulator or a combination thereof to get
water Dispersible Granules. Which will have better
bioefficiency, more available surface area in turn
reducing amount of product used. The product will have better
flowability, be practically dust free & hence reduced inhalation
toxicity to human being during manufacture & use by farmer.
The product has smaller average particle size but larger range of
particles, better sticking properties, better dispersion & leaves
lesser residue in the soil & is hence user/friendly &
environmentally friendly. Unlike the conventional product which
has a smaller particle size range
this product has a larger range where the most particles are
from 0.1 microns to 20 microns.
The aqueous suspension consists of 80% by weight (dry basis)

of the (Sulphur active ingredient;) between 0.5 to 5% of a
wetting agent of the group of lignin derivatives; between 0.5 to
5% of the dispersing agent of the group of phenol/naphthalene;
and/or polyoxyethelene derivatives and balance 6% to 35% of
the filler along with required binding agents. Also anti foaming
agent, if required between 0.02 to 1.4%. This slurry when dried
as described above
By:AJIT KUMAR
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Date:24.03.2024 10:50
forms a free flowing formulation with less than 3% moisture
giving a granule size above 200 microns (0.2mm) and reducing
dust.
(v) Before 2006, the plaintiff was, in fact, marketing and

clearing the product claimed in the suit patent as a fungicide.
The plaintiff reclassified its product as a fertilizer to avail
Central Excise duty exemption. Reliance was placed, in this
context, on the judgment of the Customs, Excise and Service
Tax Appellate Tribunal (the CESTAT) in Sulphur Mills Ltd. v.
Commissioner of Central Excise25.
(vi) In the “Description of Related Art” in the complete

specifications in the suit patent, it was stated thus:
One problem associated with the use of these conventional
compositions is that they need to be applied in very high
dosages. The applicable dosage of these conventional
compositions per acre is very high and can extend from about 10
kg / acre for Sulphur bentonite compositions to about 25 kg per
acre for Sulphate based fertilizers and goes all the way to more
than 100 kg/acre in case of gypsum.
As compared to this, in the case of the composition covered by

the suit patent, the complete specifications read:
In cereal crops such as rice and wheat a dosage of about 3 to 4
g/square meter in rice nurseries was applied 10 days after seed
sowing at the time of transplantation exhibited a nursery crop
with profuse root development and with healthy and strong
seedling.
3 to 4 g/sq m worked out to 12-16 kg/acre. There was,

therefore, no advantage, in the composition claimed in the suit
patent, over existing prior art. The plaintiff’s contention that
25
2012 (285) ELT 375 (T)
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use of the suit composition resulted in reduction of sulphur
dosage in the soil was, therefore, incorrect.
(vii) None of the examples provided in the complete

specifications of the suit patent referred to conversion of
sulphur into sulphate. They all claimed that the composition
gave good results of suspension and dispersibility.
(viii) Examples 4 and 5 in the complete specifications of the

suit patent read thus:
“Example 4:
A slurry is obtained by blending about 65% of the sulphur active
ingredient, about 5% phenyl naphthalene sulphonate, 25%
polyvinyl pyrrolidone, 2.5% of lignosulfonate and about 2.5% of
zinc in an effective amount of water. The slurry so formed is wet
grinded in a suitable wet grinding equipment to obtain particles
in the size range of about 2 microns to about 12 microns. The
slurry is then dried in a fluidized bed drier and the particles are
agglomerated to obtain the agricultural composition which is in
the size range of about 0.1 mm to about 2.5 mm. The
composition displayed good results of suspension and
dispersibility (80%).
Example 5:
A slurry is obtained by blending about 70% of the sulphur active
ingredient, about 7% phenyl naphthalene sulphonate, 20%
polyvinyl pyrrolidone, 0.5% of lignosulfonate and about 2.5% of
naphthalene formaldehyde condensate in an effective amount of
water. The slurry so formed is wet grinded in a suitable wet
grinding equipment to obtain particles in the size range of about
1 micron to about 12 microns. The slurry is then dried in a
fluidized bed drier and the particles are agglomerated to obtain
the agricultural composition which is in the size range of about
0.1 mm to about 2.5 mm. The composition displayed good
results of suspension and dispersibility (82.5%).”

By:AJIT KUMAR
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Date:24.03.2024 10:50
In these examples, Sulphur was used only to the extent of 60%
to 70% w/w.
(ix) A report, dated 16 June 2009 of the Indian Institute of

Vegetable Research (IIVR) disclosed that COSAVET DF 80
WDG, with Sulphur 80% WDG, could also act as a fertilizer.
The report compared the efficacy of COSAVET DF with
FERTIS 90 WG, Gromor and Gypsum as a source of sulphur for
potato. Efficacy of FERTIS 90 WG was found to be superior
not because of any particular particle size, but merely because
the particle size was “very fine”. The report precisely read:
“The superior efficacy of Fertis 90 WG is because of its higher
amount of sulphur and very fine particle size which allows much
quicker conversion of sulphur to sulphate (compared to the other
sulphur sources) which is the only form in which sulphur can be
taken up by plants. The plants being relatively healthy late blight
attack was minimal.”
(x) Fungi, or bacteria, would not be able to distinguish

between a composition containing 80%, and one containing
90%, of sulphur. What was crucial was the amount, not the
concentration, of sulphur.
(xi) Thus, if sulphur, of requisite concentration, was applied

to the soil, it would act as a fertilizer and, if applied to leaves, it
would act as a fungicide.
(xii) The following table demonstrates how the composition

claimed in the suit patent is anticipated by App 655:
Signature Not Verified Impugned DI-655 (pg. 50-51 Remark
By:AJIT KUMAR
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Date:24.03.2024 10:50
Patent [page pg. of Plaintiff
20 of Plaintiffs’ Documents filed
Docs filed along along with Plant)
with Plaint)
Particle Size 2- Particle Size: 0.1 to Smaller particle
12 microns 20 microns size with wider
range of particle
size from 0.1 To 20
micron, with more
particles in the
range of 0.5 to 4
microns, Ref. Pg
43, 2nd & 3rd para of
the Plaintiff’s docs.
Claimed range is a
subset of D1
without any
technical
enhancement.
Granule Size Granule size: Bigger granule size:
0.1-2.5 mm (100 above 200 microns Ref. Pg. 43 2nd para
to 2500 microns) of the plaintiff’s
docs.
Claimed range is
overlapping with
D1
FORM– Water FORM– Water Same as D1
Dispersible Dispersible
Granules Granules
Sulphur Sulphur Content Claimed range is a
Content– 82%- – 80% Minimum subset of D1
98%
Sulphur to Oxidation of Oxidation means
sulphate Sulphur particles; conversion of
conversion Ref. Pg 43 of Sulphur to sulphate
Plaintiff’s Docs. i.e. is S to SO4
Dispersing agent Dispersing agent Claimed range is
in the range of 2 0.5 to 5% overlapping with
to 18% DI
Agricultural Fungicidal/miticide Fungicide &
composition composition miticide are also a
wherein the type of agricultural
composition is composition and
fertilizer, nutrient, fall under the
plant category of plant
strengthener, protectant.
Signature Not Verified plant protectant
By:AJIT KUMAR
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Date:24.03.2024 10:50
(includes
fungicide), soil
conditioner, Ref.
Pg 9, para 2 of
Plaintiff’s docs.
(xiii) The suit patent is also invalid as being hit by Section 3(d)
of the Patents Act. Reliance is placed, in this context, on para
19 of the plaint, which admits that the suit patent is merely a
new use being put to App 655, which is a fungicide:
19. It is submitted that some water dispersible granules of
Sulphur - both fungicidal and fertilizer -were known in the art.
One such fungicidal composition was disclosed in Plaintiff's own
Indian Patent Application No. 655/MUM/2000 (hereinafter 655
Application) titled 'An improved fungicide/miticide, sulphur
formulation in the dry flowable form (WG) and a method of
manufacturing the same. It is pertinent to mention herein that the
said application ('655 application) was cited as closest prior art
during third party pre grant oppositions to the suit patent and has
been distinguished by the Controller vide its order dated
11.04.2017 thereby rejecting this prior art as affecting neither
novelty or inventive step of the claimed invention under the suit
patent. The ‘655 application discloses a fungicide composition
comprising 80% Sulphur on a dry basis as described in claim 1
thereof. ‘655 application further discloses that the composition,
as described and claimed therein, was effective in reducing the
intensity of diseases on the aerial parts of plants at a low
concentration. On the other hand, the subject patent provides a
plant growth or fertilizer composition with a high loading of
sulphur in the range of 82% to 98%. The 655 application
nowhere discloses a composition with a high loading of sulphur
as high as 82% to 98% by weight. The 655 application provides
a foliar application of Sulphur for pest control, whereas the
subject patent provides sulphur composition for soil application
to facilitate sulphate conversion for ready uptake by the plants
for their growth and high yield.
The suit composition and the composition claimed in App 655

were both WDGs with overlapping particle size, manufactured

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using the same wet grinding technology, using the same
equipment.
(xiv) There was no comparison in the yield obtained by using

Sulphur particles of size 2-12 µ, claimed in the suit patent, out
of the particle size of 0.1-20 µ claimed in App 655.
(xv) Examples 4 and 5 in the suit patent contain 65% and 70%
of Sulphur respectively. As such, even with Sulphur below the
claimed composition of 82-98%, the plaintiff was obtaining the
fertilizer effect. Section 10(4)26 of the Patents Act deemed
examples given in the complete specifications to be the best
mode of performing the claimed invention. Thus, the claimed
suit composition was not supported by the Examples provided.
Examples 4 and 5 also discredited the plaintiff’s claim that it
26
(4) Every complete specification shall –
(a) fully and particularly describe the invention and its operation or use and the method by
which it is to be performed;
(b) disclose the best method of performing the invention which is known to the applicant and
for which he is entitled to claim protection; and
(c) end with a claim or claims defining the scope of the invention for which protection is
claimed.
(d) be accompanied by an abstract to provide technical information on the invention:
Provided that—
(i) the Controller may amend the abstract for providing better information to third
parties; and
(ii) if the applicant mentions a biological material in the specification which may
not be described in such a way as the satisfy clauses (a) and (b), and if such material is
not available to the public, the application shall be completed by depositing the material
to an international depository authority under the Budapest Treaty and by fulfilling the
following conditions, namely:—
(A) the deposit of the material shall be made not later than the date of
filing the patent application in India and a reference thereof shall be made in the
specification within the prescribed period;
(B) all the available characteristics of the material required for it to be
correctly identified or indicated are included in the specification including the
name, address of the depository institution and the date and number of the
deposit of the material at the institution;
(C) access to the material is available in the depository institution only
after the date of the application for patent in India or if a priority is claimed
after the date of the priority;
(D) disclose the source and geographical origin of the biological material
Signature Not Verified in the specification, when used in an invention.
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was obtaining a unique fertilizer effect by loading Sulphur to
the extent of 82-98%.
(xvi) Moreover, the Examples provided in the complete

specifications of the suit patent emphasized only dispersibility
as an inventive feature of the claim in the suit patent.
(xvii) The suit composition lacked an inventive step vis-à-vis

prior art, within the meaning of Section 2(1)(ja)27 of the Patents
Act. This is sought to be demonstrated in a tabular fashion,
thus:
Impugned Patent [Pg. Prior art documents relied upon
20 of Plaintiff’s Docs by Defendant No.2
filed along with Plaint]
Sulphur Content: 82% a) D1: 80% minimum. [Pg. 50 of
to 98% Plaintiff’s Docs filed along with
Plaint].
a) US 5,599,373 Patent of Pietro
Zanuccoli: 93% of Sulphur [Pg. 7-
10 of present written submission
and submitted to the Hon’ble
Court during court proceeding].
b) Gazette of India Notification
dated 26.12.2006 (Pg. 228-231
Ref.Pg. 230 of Defendant’s
Document dated 13.07.2019 filed
in 5 Volumes) 90% powder and
granular.
c) Reply Received from Ministry
of Agriculture and Farmers
Welfare to RTI in Patent
No.282429 (Pg. 349-350, Ref.
Pg.349 of Defendant’s Document
dated 13.07.2019 filed in 5
Volumes) 90% powder and
granular.
27
(ja) “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;
By:AJIT KUMAR
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Particle Size: 2-12 b) D1 0.1-20 Micron [Pg. 50 of
micron Plaintiff’s Docs filed along with
Plaint].
c) Background of D1: 4-10 micron
[Pg. 50 of Plaintiff’s Docs filed
along with Plaint].
Granule size: 100-2500 d) D1: Above 200 micron [Pg. 50

micron (0.1-2.5 mm) of Plaintiff’s Docs filed along with
Plaint].
a) Gazette of India, FCO
notification dated 28th December
2006: 1 mm to 4 mm i.e 1000-
4000 micron 2006 (Pg. 228-231
Ref. Pg. 230 of Defendant’s
Document dated 13.07.2019 filed
in 5 Volumes).
Form: Water Dispersible a) D1: Water dispersible granules
granules
Process: Wet grinding a) D1: Wet grinding method
method
Use: Agricultural a) D1: Fungicide (a type of
composition agricultural composition)
b) US 5,599,373 Patent of Pietro
Zanuccoli : Soil corrective or soil
conditioner i.e. fertilizer.
c) Gazette of India, FCO
notification dated 28th December
2006: Straight Sulphur Fertilizers
Sulphur to Sulphate a) D1: Oxidation of Sulphur.
conversion b) US 5, 599,373 Patent of Pietro
Zanuccoli: Once sulfur is present
in soil in finely divided form, it is
converted into sulfate icons by
sulfoxidizing microorganisms, like
the bacteria of the kind
Thiobacillus.
Particle size & surface e) D1: Another object of the
area correlation: invention is to provide an
smaller particle size to improved process of
give larger surface area manufacturing Sulphur WG
formulation having smaller
individual particles (contained in
granule) which is an
agglomeration of particles, thus
much higher surface area to give
Signature Not Verified better coverage thereby using
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Date:24.03.2024 10:50
Sulphur Chemical product on the
plant while in use [Pg.50 of
Plaintiff’s Docs filed along with
the Plaint].
(xviii)The teaching and motivation for using sulphur in 90%

concentration w/v as a fertilizer was already available in the
following prior art:
(a) the FCO specification for sulphur 90% granule and
powder, which was published in December 2006, even
before the application for the suit patent was filed,
(b) App 655, which taught wet grinding technology
when dealing with sulphur to avoid fire hazard, as
sulphur was explosive; ergo, carving out, from the
complete specifications in App 655, 82-98% Sulphur
content, 2-12 µ particle size and 0.1 to 2.5 mm granule
size (which was overlapping) was neither surprising nor
invented by the plaintiff, and
(c) the plaintiff’s own laboratory report, which showed
maximum particles falling between 0.1 and 20 µ (as is
reflected by the D90 figure being 20.326, meaning 90%
of particles are of 20.326 µ or less), with 51% particles
falling in the overlapping range of 2 to 12 µ.
The defendant manufactured Sulphur 90% as powder as per the
FCO. Further, any person skilled in the art could club the
teachings of App 655, using wet grinding technology, to
manufacture 90% Sulphur to be used as a fertilizer from the
teachings in App 655.

By:AJIT KUMAR
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Date:24.03.2024 10:50
Submissions of Ms. Rajeshwari
28. Ms. Rajeshwari advanced the following submissions, to oppose

the prayer for interim injunction:
(i) That sulphur acts both as a fertilizer and as a fungicide is

known prior to 2007. Ms. Rajeshwari relies on the article
“Sulfur in organic farming” by Hans Marten Paulsen published
in the Landbauforschung Volkenrode, Special Issue 283 in 2005
and on the Extoxnet Extension Toxicology Network article
titled “Sulfur” published in September 1995, of which the latter
envisaged use of Sulphur of 90% concentration w/w. In using
sulphur as a fertilizer, therefore, no inventive step was involved.
(ii) Oxidation of sulphur to sulphate is carried out naturally

by the thiobacilli soil bacteria, without human intervention.
Besides, as sulphur is dangerous to handle, it is administered as
a formulation. Ms. Rajeshwari relies on the “Technical
Bulletin: Oxidation of Elemental Sulfur in Soils” published by
the Fertiliser Technology Research Centre of the University of
Adelaide.
(iii) It is also common knowledge that the smaller the particle

size, the greater would be the oxidation, as the surface area
would increase. Ms Rajeshwari again relies, for this, on the
formulation. Ms Rajeshwari relies on the “Technical Bulletin:
Oxidation of Elemental Sulfur in Soils” published by the
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Fertiliser Technology Research Centre of the University of
Adelaide.
(iv) Inasmuch as the use of Sulphur of 90% concentration

w/w as a fertilizer was known in the prior art, the claim in the
suit patent had to be limited to a formulation of particle size and
granule size.
(v) If cumulative teachings in prior art would lead one to the

claimed invention, the claimed invention was invalid as being
obvious from the prior art. Reliance was placed, for this
purpose, on the judgment of this Bench in F.M.C. Corporation
v. Natco Pharma Ltd28.
(vi) App 655 taught

(a) preparation of a sulphur formulation as a fungicide,
(b) a sulphur formulation, with
(i) 80% Sulphur,
(ii) granule size greater than 200 µ and
(iii) particle size of 0.1 to 20 µ, and
(c) preparation by wet grinding method, which
eliminated all problems associated with dry grinding
including explosion and permitted use of particles of any
size.

28
2021 SCC OnLIne Del 3647
By:AJIT KUMAR
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Date:24.03.2024 10:50
(vii) UK Patent Application GB 2185005 (GB’005) of Ivan
Ivanovich Zozulye and others, published on 8 July 1987, taught
the use of wet grinding, instead of dry grinding, to avoid
explosion, and also taught that wet grinding would also yield
fine particles.
(viii) Prior art in the form of US 3920442 (US’442), 1975, US

5628800 (US’800),1997 and App 655 taught preparation of
Sulphur granules using fluidized bed method, in which slurry is
fed into a system, sprayed through an atomizer and exposed to
hot air to obtain granules. This is known as “Spray Drying”.
(ix) The FCO dated 12 December 2006:
(a) taught manufacture of powder or granules of 90%
Sulphur for use as a fertilizer,
(b) did not prescribe any dimensions in the case of
powder, though some dimensions were prescribed for
granules, and
(c) forbade any person from manufacturing or selling
Sulphur which did not conform to the FCO.
(x) Thus, the following teachings were available in prior art

to a person skilled in the art who wanted to prepare a Sulphur
based formulation for use as a fertilizer:
(a) that Sulphur can be used as a fertilizer,
(b) that Sulphur formulations must be in granules,
(c) that Sulphur could be used 90% w/w with other
excipients,
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(d) that rapid oxidation would occur with fine
granules, and
(e) that wet grinding would yield finer granules.
(xi) Thus,
(a) in 1987, GB’005 dealt with the Sulphur wet
grinding method, and also addressed the issues of
explosion and fire hazard when Sulphur was used,
(b) in 1997, US’764, GB’140 and US’373 dealt with
the Sulphur wet grinding method,
(c) prior to 2000, the notifications issued under the
FCO 1985 regulated the strength at which Sulphur was
manufactured and the purpose of its sale, and permitted
sale of Sulphur of 80% strength as a fungicide,
(d) App 655 claimed an improved fungicide
composition in the form of WDGs, with Sulphur in the
strength 60-90%, especially 80%, particle size between
0.1 and 20 µ, and granule size above 200 µ, and
(e) the FCO of 16 December 2006 permitted the use of
Sulphur in the concentration of 90% w/w as fertilizer in
powder or granule form.
(xii) The particle and granule size in the suit patent were,
therefore, merely on obvious subset of the broad coverage of
App 655.

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(xiii) Such a selection patent would be valid only if the
plaintiff were to demonstrate that, outside the selected range,
the product would not act as a fertilizer, or that use of the
product within the selected range resulted in surprising
advantages or effects. No such data is presented by the
plaintiff. Reliance was place, for this purpose, on
(a) I.G. Farbenindustrie A.G.’s Patents29,
(b) In re. Guenther K. Hoeschele30 and
(c) Genentech, Inc. v. Hospira, Inc.31
(xiv) Without such data, the selection in the suit patent was
obvious from prior art, as App 655 already suggested that
reduction in particle size would increase oxidation, and the
particle size range was within the range suggested in App 655.
The person skilled in the art would, therefore, experiment
around this range, and, on optimization, come up with the range
envisaged in the suit patent.
(xv) The claimed range of particle and granule size did not
show any unexpected advantages. Even at lesser sizes, fertilizer
effect was achieved. No unexpected results were shown to
result as a consequence of using the range claimed in the suit
patent. Reliance is placed, in this context, on In re. Woodruff32.
The claimed range in the suit patent is, therefore, prima facie
29
[1930] 47 RPC 289
30
406 F. 2d. 1403
31
Decision dated 10 January 2010 of the US Court of Appeals for the Federal Circuit in Appeal from the
USPTO, Patent Trial and Appeal Board in No. IPR2016-01837
32
919 F. 2d. 1575 (Fed. Cir. 1990)
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obvious and a mere ramification of prior art. Reliance is
placed, for this purpose, on Biswanath Prasad Radhey Shyam
v. Hindustan Metal Industries33.
(xvi) The submission that, owing to reduction in particle and

granule size, the dosage of fertilizer required to be used had
drastically reduced, was incorrect. Example 6 in the suit patent
envisaged usage of fertilizer in the range of 12.14 to 16.187
kg/acre, which was within the range of 10 kg to 25 kg/acre used
in the case of conventional fertilizer.
(xvii) The suit patent did not either refer to the problem of
possibility of explosion, or claim to provide a solution thereof.
On the other hand, the wet grinding method for Sulphur
formulations was obvious from GB’005 (in 1987), US’764 (in
1995), GB’140 (in 1996), US’373 (in 1997) and App 655.
(xviii)The suit patent did not claim any special advantage

owing to the cumulative effect of loading Sulphur to 90% and
reducing granule and particle size.
(xix) The defendants had, therefore, merely followed the

process which was taught by App 655 and was, therefore, in the
public domain.
Analysis
33
(1979) 2 SCC 511
By:AJIT KUMAR
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Date:24.03.2024 10:50
29. Applying the settled principles in this regard, I am of the view
that the defendants have succeeded in making out a prima facie
credible challenge to the validity of the suit patent as being vulnerable,
within the meaning of Section 64 of the Patents Act. It is not
necessary, therefore, to enter into the aspect of comparison of the
claims in the suit patent with the product of the defendants.
Salient features of claimed composition as per averments in the plaint

and in complete specifications of suit patent
30. From the averments in the plaint, the following features of the
composition claimed in the suit patent are highlighted.
30.1 The claimed composition is in the form of WDGs. These

possess advantages over conventional agrochemical formulations
owing to greater ease of use, pouring properties and granular nature.
However, it is admitted, in para 19 of the plaint, that App 655 was also
in the form of WDGs.
30.2 The suit composition facilitated almost instantaneous

conversion of sulphur into sulphate for ready uptake by the plants.
This overcame serious drawbacks in the conventional agrochemical
formulations which could not provide yield proportional to the
investment in procuring and applying the formulations.

By:AJIT KUMAR
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30.3 Para 22 of the plaint describes the composition claimed in the
suit patent as “comprising an effective amount of sulphur active
ingredient and at least one dispersing agent; wherein the composition
is in the form of water dispersible granules having specific granule
and particle size”. This is detailed, somewhat, in para 24, which
asserts that the composition claimed in the suit patent comprises
suplhur as an active ingredient in the rate of 82 to 98% w/w, in the
form of WDGs of size 0.1 to 2.5 mm, comprising particles in the rage
of 2 to 12 µ. The three primary distinguishing features of the
composition in the suit patent, as per the plaint, are, therefore, the
amount of sulphur as an active ingredient, the granule size, and the
particle size. These three qualities make the suit composition effective
as a fertilizer, which facilitates ready uptake of sulphur as sulphate by
the plants when administered in the soil.
30.4 Owing to these properties, as per para 27 of the plaint, enhanced

crop yield is achieved by surprisingly reduced dosages, as compared
to conventional formulations which have to be applied at higher
dosages of about 10 kg/acre for Sulphur bentonite compositions to
about 25 kg/acre for Sulphate based fertilizers, up to more than 100
kg/acre in the case of gypsum. Use in high dosages increases the
possibility of leaching in the soil and the product becoming
unavailable to the crop.
30.5 Moreover, the complete specifications of the suit patent claims

that the larger size of the particles in conventional fertilizers makes
them unsuitable for administration by drip and sprinkler irrigation, the
By:AJIT KUMAR
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use of which is considerably increasing, as the larger particles may
clog the pores of the nozzle.
30.6 Conventional compositions in the form of pellets and wettable

powders, contends the specifications in the suit patent, do not exhibit
uniform suspension resulting in uneven coverage on the plant and
minimizing bio-efficacy of the product.
30.7 The specifications of the suit patent have, further to be applied

two to three months in advance to ensure conversion into sulphate and
its uptake by the plant, resulting in greater application and cost.
Features of distinction App 655 as per the plaint
31. The plaint emphasizes the following features of distinction of

the suit patent, vis-à-vis App 655.
31.1 App 655 discloses a fungicide composition, whereas the

composition claimed in the suit patent is a fertilizer.
31.2 App 655 discloses a composition of 80% Sulphur on a dry

basis, whereas the suit composition contained Sulphur concentration
of 82 to 98% w/w.
31.3 App 655 was for foliar application, whereas the suit
composition was for application in the soil.

By:AJIT KUMAR
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Date:24.03.2024 10:50
31.4 App 655 did not envisage conversion of sulphur into sulphate,
which was the main raison d’etre of the suit patent. The suit patent
facilitated conversion of sulphur into sulphate for ready uptake by the
plants.
Examples cited in the specifications in the suit patent
32. The examples provided in the specifications of the suit patent

are of importance as, even as per the specifications, they illustrate the
claimed invention, even they are not intended to be delimiting in
nature.
32.1 Example 1 blends 91% of Sulphur with 0.5% phenyl

naphthalene sulphonate, 1% polyvinyl pyrrolidone, 5.5%
lignosulfonate and about 2% of an ethoxylated alkyl phenol in water.
The slurry so formed in wet ground to obtain particles in the size
range of 1 to 12 µ. The slurry is dried and particles agglomerated so
that the resultant particles are in the size range of 0.1 to 2.5 mm.
32.2 Example 2 blends 84% of Sulphur with excipients in water.

The slurry so formed is wet ground to obtain 2 to 12 µ particles and,
after drying, results in the composition with size range of 0.1 mm to
2.5 mm.
32.3 Example 3 blends 91% sulphur with 9% phenyl naphthalene

sulphonate in water. The slurry so formed is wet ground to obtain 2 to

By:AJIT KUMAR
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12 µ sized particles which, after drying, results in a composition of
size range 0.1 mm to 2.5 mm.
32.4 Example 4 blends 65% Sulphur with excipients in water. The

slurry so formed is wet ground to obtain particles of size 2 to 12 µ
which, after drying, results in granules of size 0.1 mm to 2.5 mm.

which, after drying, results in granules of size 0.1 to 2.5 mm.

which, after drying, results in granules of size 0.1 to 2.5 mm.
33. This makes it immediately apparent, as Ms. Rajeshwari

correctly contends, that Sulphur composition for obtaining the
favourable results, as a fertilizer, which the suit patent claims, is not
necessarily required to be 82 to 98%. The examples with the suit
patent also include Sulphur of 65% and 70% composition. This, by
itself, dilutes considerably, the plaintiff’s stand that one of the novel
features of the suit patent is that it uses Sulphur in high concentrations
of 82 to 98%. In fact, in each of the examples contained in the
complete specifications of the suit patent, the process of generating
particles from the blended product is the same. Particles are obtained
by wet grinding, and drying is carried out on a fluidized bed drier.

By:AJIT KUMAR
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Date:24.03.2024 10:50
The sizes of the particles, or granules, which result, are merely the
consequence of the grinding and drying process.
Prior Art
34. App 655
34.1 Undoubtedly, App 655 claims a fungicide.
34.2 The “Background of the Invention” in App 655 declares that

better physical properties, and greater bio efficacy, is achieved “due to
an efficient particle size as a result of increasing the range of the
particles and having more particles in the range 0.5 to 4 µ which in
turn increases the surface area of the sulphur particles”.
34.3 App 655 claims a composition with 80% minimum Sulphur

content, 95% granules above 200 µ and 99% particles in the size range
0.5 to 7 µ.
34.4 The process for obtaining the final product of desired particle
and granule size is thus described:
“2 A normal sulphur 80 WG is produced by blending by
rock/powdered Sulphur with dispersing/wetting agents etc. and
suitable known fillers. This is made in to slurry by addition of
water etc. and this slurry is further ground to fine micron size in
bead mill (normally known as sand mill, dyno mill, turbo mill etc.
on a particle of glass or other beads in a cylindrical, horizontal or
vertical container.) This slurry is spray dried in a known art nozzle
or disc atomize spray drying plant with most particles in range of 1
to 8 microns.
By:AJIT KUMAR
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3. Sulphur 80 WG is also manufactured by blending molten sulphur
(temp. between 110° to 250° C) with adjuvants like
dispersing/wetting agents etc. with or without filler and the molten
mass is than solidified in a spray cooler in to granules with most
particles in range of 1 to 8 microns. The other conventional process
is improved upon by the improved method of manufacturing
described below.
The above process until this point is a well known art.
After this necessary adjuvants/surfactants and fillers are added to

obtain desired Sulphur content (on dry basis) is achieved in the
slurry. While adding adjuvants in the tank, adjuvants should be
stirred with stirrer known to the industry could be used. Typically
silverston type mixer or another mixer must be on at all times.
At this stage a very homogenous mixing /coating of particles takes

place because of product being in a liquid suspension stage.
Once thorough mixing/blending is achieved, the slurry is allowed

to pass through a known art grinding/milling/particle size
reduction.
In the new art the homogenous mixing of the slurry arrived from
the known art process is done in the stirrer tank. Grinding/milling is
achieved with different types of mills like sand mills, beed mill
(vertical/horizontal), Turbo mill, Dyno mill, Attritator, Peari mill
from known art.
By increasing the grinding time and monitoring the flow rate a

bigger range of particle sizes are obtained.
Basically all these wet grinding mills/equipments are working on a

principle of grinding the product slurry with the aid of beads of size
from 0.4 mm to 20 mm.
Varying material like metallic stainless steel/Brass zirconium oxide

bead/zirconium sand/glass beads/ceramic beads/Silica quartz/
zirconium silicate beads and or fused ceramic bead high density
high alumina micro beads and/or similar or such combination of
above can be used to achieve this required grinding.
Such beads with diameter more than 0.3mm and hardness more
than 3 Mohs and bulk volume more than 1.2 kg/lit, crushing
strength more than 400 N and density more than 1.5 can be used as
grinding media.
By:AJIT KUMAR
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A mill with diameter from 6 to 60" and length of 1 ft. to 8 ft. can be
used.
Here a sample from the output slurry is taken for particle size
analysis then once convinced that majority of the particles are n the
range that we want, the slurry is pumped/stored in another tank for
feeding through a suitable piston pump/ Screw pump and allowed
to spray/atomize through a high pressure nozzle (At a pressure of
10 to 50 bar) or through a rotary atomizer rotating at 5000 to 12000
R. P. M.
While the slurry is being sprayed as mentioned above, the hot air at
a temp between 100° C to 250°C is fed from the top of the chamber
from a specially designed wing director. The hot air mixes with the
atomized Sulphur spray from the nozzle or rotary disk and hence it
is slowly dried and agglomerated.
The agglomerated particles/Granule which are still wet (Moisture

8%) is met with from bottom integrated fluid bed drier from lower
part of the spray drier main chamber from where the hot air of
70°C 110°C is blown through a fluidized bed so that the already
dried onion skin granules move up to meet the top spray product
and hence raspberry type granulation takes place.
The granules are allowed to come out through rotary valve and are
further dried in to a horizontal post fluid bod drier where dust is
again separated and re fed into the drying chamber.
The saturated hot air goes through two top outlet along with some
fines through cyclone separator. The fines are collected and/or
refed into the system on the bottom via rotary valve. The saturated
air with very littles fines is passed through ventury and/or a packed
column scrubber. The clean dust free air is allowed to go into the
atmosphere.”
34.5 Claim 1 in App 655
Claim 1 in App 655 reads thus:

“An improved fungicidal/miticide formulation consisting of the
following ingredients which are mixed thoroughly to obtain an
improved formulation for making granules from micro particles
obtained by wet grinding the aqueous suspension coating and
subsequently drying in spray/fluidized bed spray and fluid bed
spray granulator or a combination thereof to get water Dispersible
By:AJIT KUMAR
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Granules Which will have better bioefficary, more available
surface area in turn reducing amount of product used. The product
will have is claimed to have better flowability, be practically dust
free & hence reduced inhalation toxicity to human being during
manufacture & use by farmer. The product has smaller average
particle size but larger range of particles, better sticking properties,
better dispersion & leaves lesser residue in the soil & is hence
user/friendly & Environmentally friendly. Unlike the conventional
product which has a smaller particle size range this product has a
larger range where the most particles are from 0.1 microns to 20
microns.
The aqueous suspension consists of 80% by weight (dry basis) of

the (Sulphur active ingredient;) between 0.5 to 5% of a wetting
agent of the group of lignin derivatives; between 0.5 to 5% of the
dispersing agent of the group of phenol/naphthalene; and/or
polyoxyethelene derivatives and balance 6% to 35% of the filler
along with required binding agents. Also anti foaming agent, if
required between 0.02 to 1.4%. This slurry when dried as described
above forms a free flowing formulation with less than 3% moisture
giving a granule size above 200 microns (0.2mm) and reducing
dust.”
Thus, the following features of Claim 1 in App 655 are immediately

apparent:
(i) It involves obtaining of granules from micro particles.
(ii) The granules are obtained by wet grinding and

subsequent drying.
(iii) The drying is conducted “in spray/fluidized bed spray

and fluid bed spray granulator or a combination thereof”.
(iv) Most particles are in the size range 0.1 to 20 µ.
Signature Not Verified (v) The resultant granule size is above 0.2 mm.
By:AJIT KUMAR
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Date:24.03.2024 10:50
34.6 When one compares the stipulations in the specifications in App
655 with those in the specifications of the suit patent, the position that
emerges is that, in both specifications,
(i) sulphur is combined with a wetting agent, a dispersing

agent, a binding agent and fillers,
(ii) alkyl naphthalese aromatic sulphonic acid is a preferred
wetting agent in App 655, whereas alkyl naphthalene
sulphonates are used in the suit patent,
(iii) a group of phenol/naphthalene is used as the dispersing
agent in App 655, and phenyl naphthalene sulphonates are used
in the suit patent,
(iv) lignin derivatives are used as the binding agent,
(v) bentonite, talc and china clay are used as fillers,
(vi) the sulphur, dispersing/wetting agent and fillers are added
to water to make a slurry,
(vii) the slurry is subjected to wet grinding to obtain particles
of the desired µ size, and
(viii) the slurry is then spray dried in a fluidized bed drier.
As a result, in the suit patent, particle sizes of 1 to 12 µ and granule
size of 0.1 to 2.5 mm are produced, and, in App 655, particles of 1 to 8
µ size with granules of size above 0.2 mm result.
34.7 Mr. Deepak Pranjivandas Shah is the inventor of the suit patent
as well as of App 655.

By:AJIT KUMAR
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Date:24.03.2024 10:50
34.8 It is significant that, when one compares particle and granule
sizes between the suit patent and App 655, the position that emerges is
that
(i) the particle size in the suit patent, of 2 to 12 µm, is within
the particle size in App 655, which is 0.1 to 20 µm.
(ii) the granule size, in the suit patent, of 0.1 to 2.5 mm, is
within the granule size range envisaged in App 655, which is
over 200 µm, which is equivalent to 0.2 mm.
Both particle and granule size in the composition claimed in the suit
patent are, therefore, entirely subsumed in the particle and granule
size in App 655.
35. Obviousness of composition in suit patent vis-à-vis prior art

from the point of view of person skilled in the art
35.1 At the outset, it needs to be noted that Section 2(1)(ja) of the

Patents Act defines “inventive step” as meaning “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”. There is no
reference, therefore, to a person ordinarily skilled in the art or, as it is
often abbreviated, the “POSA”, but merely a “PSA”. The word
“ordinarily” appears, therefore, to be superfluous and unnecessary,
and introduces a needless element of subjectivity into the definition
which, otherwise, is clear and precise. The person is one who is
skilled in the art. He is not, therefore, the gentleman on the Clapham
omnibus, or even the mythical man “of average intelligence and
By:AJIT KUMAR
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Date:24.03.2024 10:50
imperfect recollection” through whose eyes trade mark infringement is
gauged. He is skilled in the art.
35.2 The “art”, needless to say, refers to the subject matter of the
invention claimed in the suit patent. In the context of the present
dispute, therefore, the PSA is skilled in the use of agrochemical
compositions. “Skill” must involve a sufficiently comprehensive
knowledge of the art, and its various features and intricacies, even if it
need not extrapolate to mastery.
35.3 The character and features of the PSA, and of how the test of
obviousness is to be applied from the point of view of the PSA, stand
delineated in precedents.
35.4 A Division Bench of this Court has, in F. Hoffman la Roche,

observed thus:
“145. Whether an invention involves ‘novelty’ and an ‘inventive
step’ or is ‘obvious’ is a mixed question of law and fact, depending
on the facts and circumstances of each case. Though no absolute or
uniform formula can be laid down to ascertain obviousness
however certain broad criteria have been laid down in the various
decisions.
146. Obviousness has to be strictly and objectively judged. In

the decision reported as Bishwanath Prasad v. Hindustan Metal
Industries34 the Supreme Court laid down the principles to test
‘inventive step’ as under:-
25. Another test of whether a document is a publication

which would negative existence of novelty or an “inventive
step” is suggested, as under:
“Had the document been placed in the hands of a

competent draftsman (or engineer as distinguished
34
(1979) 2 SCC 511
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from a mere artisan), endowed with the common
general knowledge at the ‘priority date’, who was
faced with the problem solved by the patentee but
without knowledge of the patented invention, would
he have said, ‘this gives me what I want?’
(Encyclopaedia Britannica; ibid). To put it in
another form: ‘Was it for practical purposes
obvious to a skilled worker, in the field concerned,
in the state of knowledge existing at the date of the
patent to be found in the literature then available to
him, that he would or should make the invention the
subject of the claim concerned?’ [Halsbury,
3rd Edn., Vol. 29, p. 42 referred to by Vimadalal, J.
of Bombay High Court in Farbwerke Hoechst & B.
Corporation v. Unichem Laboratories35”
147. To test obviousness the first test required to be applied is to

see who is an ordinary person skilled in art (POSA) and what are
its characteristics. The features of a person skilled in the art are
that of a person who practices in the field of endeavour, belongs to
the same industry as the invention, possesses average knowledge
and ability and is aware of what was common general knowledge
at the relevant date.
148. The Supreme Court of United States in the decision

reported as William T. Graham et al. v. John Deere Company of
Kansas City et al.36 analyzed the factual determination of the level
of ordinary skill in the art which analysis was followed with
approval in Environmental Designs Ltd. v. Union Oil Company
of California37, Orthopedic Equipment Co. Inc. v. The United
States38, Newell Companies, Inc. v. Kenney Manufacturing
Company39 and Daiichi Sankyo Co., Ltd. v. Apotax, Inc40. The
decisions laid down the following principle factors, though not
exhaustive, as under:-
“In determining the level of ordinary skill in the art, you

should first determine whether there was a number of
people who regularly worked to solve the type of problem
that the invention solved, and, if so, determine the level of
ordinary skill of such people at the time the invention was
made. You must consider the level of skill as to the time
35
AIR 1969 Bom 255
36
383 U.S. 1 (1966)
37
218 U.S. P.Q. 865
38
702 F.2d 1005
39
864 F.2d 757
40
501 F.3d 1254
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the invention was made. Among the factors that may be
considered in your determination are:
(1) The various ways that others sought to solve

the problems existing;
(2) The types of problems encountered;
(3) The rapidity with which new inventions are

made in this art;
(4) The sophistication of the technology

involved; and
(5) The educational background of those
actively working in the field.”
149. The triple test of obviousness has been laid down by the
U.S. Supreme Court in KSR International Co41 i.e. ‘teaching,
suggestion, or motivation’. Noting that the analysis was objective,
it was held:-
“Under § 103, the scope and content of the prior art are to
be determined; differences between the prior art and the
claims at issue are to be ascertained; and the level of
ordinary skill in the pertinent art resolved. Against this
background, the obviousness or nonobviousness of the
subject matter is determined. Such secondary
considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to
give light to the circumstances surrounding the origin of
the subject matter sought to be patented.” Id., at 17-18.”
150. In Windsurfing International Inc42 the Court of Appeals

noted the four steps to answer the question of obviousness which
were followed in Pozzoli SPA43 as under:-
“(i) identifying the inventive concept embodied in the

patent;
(ii) imputing to a normally skilled but unimaginative

addressee what was common general knowledge in the art
at the priority date;
41
KSR International Co v Teleflex Inc, 550 US 398 (2007)
42
Windsurfing International Inc. v. Tabur Marine (Great Britain) Ltd, (1985) RPC 59
43
Pozzoli SPA v. BDMO SA,. (2007) EWCA Ciuv 588
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(iii) identifying the differences if any between the matter
cited and the alleged invention; and
(iv) deciding whether those differences, viewed without

any knowledge of the alleged invention, constituted steps
which would have been obvious to the skilled man or
whether they required any degree of invention.”
151. In Eisai Co., Ltd.44 the Board of Appeals of European

Patent Office applying the problem solution approach which
consists essentially in (a) identifying the closest prior art, (b)
assessing the technical results (or effects) achieved by the claimed
invention when compared with the closest state of the art
established, (c) defining the technical problem to be solved as the
object of the invention to achieve these results, and (d) examining
whether or not a skilled person starting from the closest prior art
“would” arrive at something falling within claim by following the
suggestion made in the prior art held that when deciding upon
inventive step in relation to pharmacologically active compounds it
is not essential whether a particular substructure of a compound
could be replaced by another known isosteric one, but whether
information was available on the impact of such a replacement on
the pharmacological activity of the specific group of compounds
concerned.
152. Expressing a note of caution, the Bombay High Court
in F.H. & B. Corp.45 guarded the Courts of law against the
common human failing of being wise after the event in regarding
something that has been discovered by research as obvious.
In Grain Processing46 the Court noted that care must be taken to
avoid hindsight reconstruction by using the patent in suit as a guide
through the maze of prior art references in the right way so as to
achieve the result of the claims in suit. In Pfizer Inc. v. Teva
Pharmaceuticals47 it was held that a patent challenger must
however demonstrate the selection of a lead compound based on its
promising useful properties, not a hindsight driven search for
structurally similar compounds. Similar caution was advanced
in Yamanouchi Pharmaceutical Co. Ltd.48 and Otsuka
Pharmaceutical Co. Ltd.
153. From the decisions noted above to determine

obviousness/lack of inventive steps the following inquires are
required to be conducted:
44
Case No. T164/83
45
F.H. & B Corp. v. Unicem Laboratories, AIR 1969 Bom 255
46
Grain Processing v. American Maize, 840 F. 2d 902
47
457 F.3. 1284 (United States)
48
CAFC Yamanouhi Pharmaceutical Co. Ltd v Danbury
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Step No. 1 To identify an ordinary person skilled in the art,
Step No. 2 To identify the inventive concept embodied in

the patent,
Step No. 3 To impute to a normal skilled but unimaginative

ordinary person skilled in the art what was common general
knowledge in the art at the priority date.
Step No. 4 To identify the differences, if any, between the

matter cited and the alleged invention and ascertain
whether the differences are ordinary application of law or
involve various different steps requiring multiple,
theoretical and practical applications,
Step No. 5 To decide whether those differences, viewed in

the knowledge of alleged invention, constituted steps which
would have been obvious to the ordinary person skilled in
the art and rule out a hideside approach.
154. On the various tests as noted above, there is no dispute

between Cipla and Roche however the dispute arises whether the
teaching of prior art document should be considered as a whole,
whether there should be no teachings away and whether evidence
to try merely on structural similarity can form the basis for
selection of lead compound in a prior art.
155. In Otsuka Pharmaceutical Co. Ltd. it was held -
“A patent is invalid if an alleged infringer proves, by clear

and convincing evidence, that the differences between the
claimed subject matter and the prior art are such that the
subject matter as a whole would have been obvious at the
time the invention was made to a person having ordinary
skill in the pertinent art.”
156. In re: Dillon49 relied upon by learned counsel for Cipla,

though the majority held that a prima facie case for obviousness of
chemical composition is established if there is structural similarity
between claimed and prior art subject matter, proved by combining
references or otherwise, and if prior art gives reason or motivation
to make claimed composition however, the minority judgment
noting various authorities held that Courts have expressed
dissatisfaction on the earlier rule that ‘structural obviousness’
alone was deemed to create a presumption of unpatentability. The
minority held that the weight of the authorities would show that
49
16 USPQ.2d 1897
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structural similarity of the prior art compound cannot be the
criteria alone and the prior art must prima facie suggest both
similar structure and property before the burden shifts to the
applicant to prove the unexpected differences. Even in 444.2d
581 re: John R. Slemniski the Court held that similarity of
structure alone was insufficient for prima facie unpatentability.
Thus to show obviousness besides structural similarity there should
be a reason or motivation shown in the prior art to make the
particular structural change in order to achieve the properties that
the applicant was seeking.
157. In Pfizer Inc. v. Teva Pharmaceuticals the Court of

Appeals with regard to obviousness inter alia held as under:-
The determination of obviousness is a legal conclusion

based on underlying facts. Allergan, Inc. v. Sandoz
Inc.50. After a bench trial, we review the district court's
factual findings for clear error and its conclusions of law
de novo. Honeywell Int'l, Inc. v. United States51. A patent
claim is invalid for obviousness if “the differences between
the claimed invention and the prior art are such that the
claimed invention as a whole would have been obvious
before the effective filing date of the claimed invention to a
person having ordinary skill in the art to which the claimed
invention pertains.” 35 U.S.C. § 103. The “underlying
factual considerations in an obviousness analysis include
the scope and content of the prior art, the differences
between the prior art and the claimed invention, the level of
ordinary skill in the art, and any relevant secondary
considerations[,]” which include “commercial success,
long-felt but unsolved needs, failure of others, and
unexpected results.” Allergan, 726 F.3d at 1290-91
(citations omitted). Patent invalidity must be established by
clear and convincing evidence. Microsoft Corp. v. i4i Ltd.
P'ship52.”
35.5 While applying the above principles, however, the Court must
also be conscious of the fact that it is dealing with an application
under Order XXXIX of the CPC, and not finally adjudicating on the
infringement plea.
50
726 F.3d 1286, 1290-91 (Fed. Cir. 2013)
51
609 F.3d 1292, 1297 (Fed. Cir. 2010)
52
131 S.Ct. 2238, 2242 (2011)
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Date:24.03.2024 10:50
35.6 Additionally, the Court must be conscious, while dealing with
an Order XXXIX plea in a patent infringement suit, where the
defendant raises a Section 107 defence, that the defendant is only
required to set up a credible challenge to the validity of the suit patent
on one or more of the grounds envisaged by Section 64(1), to avoid an
interim injunction.
35.7 There is some debate on whether, while examining whether the

suit patent is obvious from prior art, mosaicing of the features in the
prior art is permissible. There are decisions which hold that it is, and
there are decisions which hold otherwise. In my opinion, so far as this
country is concerned, the decision which has the greatest and most
authoritative precedential value is necessarily Bishwanath Prasad
Radhey Shyam, rendered, as it is, by the Supreme Court. Paras 22
and 25 of the report in Bishwanath Prasad Radhey Shyam illustrate
the legal position of the PSA, vis-à-vis the prior art and the suit patent,
to analyze obviousness, thus:
“22. This aspect of the law relating to patentable inventions, as
prevailing in Britain, has been neatly summed up in Encyclopaedia
Britannica, Vol. 17, p. 453. Since in India, also, the law on the
subject is substantially the same, it will be profitable to extract the
same hereunder:
“A patent can be granted only for ‘manner of new

manufacture’ and although an invention may be ‘new’ and
relate to a ‘manner of manufacture’ it is not necessarily a
‘manner of new manufacture’ — it may be only a normal
development of an existing manufacture. It is a necessary
qualification of a craftsman that he should have the
knowledge and ability to vary his methods to meet the task
before him — a tailor must cut his cloth to suit the fashion
of the day — and any monopoly that would interfere with
By:AJIT KUMAR
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Date:24.03.2024 10:50
the craftsman's use of his skill and knowledge would be
intolerable.
A patentable invention, therefore, must involve something

which is outside the probable capacity of a craftsman —
which is expressed by saying it must have ‘subject-matter’
or involve an ‘inventive step’. ‘Novelty’ and ‘subject-
matter’ are obviously closely allied ... Although these
issues must be pleaded separately, both are invariably
raised by a defendant, and in fact, ‘subject-matter’ is the
crucial test, for which there may well be novelty not
involving an ‘inventive step’, it is hard to conceive how
there can be an ‘inventive step’ without novelty.”
*****
25. Another test of whether a document is a publication which

would negative existence of novelty or an “inventive step” is
suggested, as under:
“Had the document been placed in the hands of a

competent draftsman (or engineer as distinguished from a
mere artisan), endowed with the common general
knowledge at the ‘priority date’, who was faced with the
problem solved by the patentee but without knowledge of
the patented invention, would he have said, ‘this gives me
what I want?’ (Encyclopaedia Britannica; ibid). To put it in
another form: ‘Was it for practical purposes obvious to a
skilled worker, in the field concerned, in the state of
knowledge existing at the date of the patent to be found in
the literature then available to him, that he would or should
make the invention the subject of the claim concerned?’
[Halsbury, 3rd Edn., Vol. 29, p. 42 referred to by
Vimadalal, J. of Bombay High Court in Farbwerke
Hoechst & B. Corporation v. Unichem Laboratories.”
35.8 From these two brief passages, several important principles

emerge, apropos the PSA and the aspect of obviousness vis-à-vis prior
art. They may be thus noted:

By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
(i) The PSA is a “competent craftsman”. He is an
“engineer”, as distinguished from a mere artisan. He is a
“skilled worker in the field concerned”.
(ii) He is endowed with “common general knowledge”.
(iii) This knowledge would encompass all knowledge present

in all “literature available to him”. Thus, all existing literature
relating to the prior art has to be taken into consideration while
deciding the issue of obviousness, and, if the existing literature
– as opposed to the mere closest prior art – teaches, or shows
the way, for the PSA to arrive at the invention forming subject
matter of the suit patent, the suit patent would be obvious.
Inasmuch as all “literature available” to the PSA is to be taken
into account, I see no justification for the proposition that there
can be no mosaicing of prior art.
(iv) In this background, it has to be gauged whether such a

PSA would be able to arrive at the subject matter of the suit
patent from the teaching in the prior art.
(v) Any monopoly which would interfere, in such

circumstances, with the craftsman’s use of his skill and
knowledge, would be intolerable.
Applying these principles to the facts

By:AJIT KUMAR
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Date:24.03.2024 10:50
36. When one applies these principles to the facts at hand, it is
apparent, prima facie, that a PSA would have, in the common general
knowledge emanating from the literature available on the subject,
enough teaching to guide him to synthesize the formulation claimed in
the suit patent. The objectives of the composition claimed in the suit
patent, as, according to the complete specifications, give it an edge
over prior conventional sulphur-based agrochemical fertilizers, and
the manner in which such objectives are to be achieved, are also
prima facie obvious from the literature constituting “prior art”.
(i) In the article Sulfur in organic farming by Hans Marten

Paulsen, it is stated:
“Beyond the natural role of sulfur as plant nutrient, in organic
farming it is an important fungicide and acaricide. S as plant
nutrient has to be kept at a sufficient level because it can help
in saving nitrogen and in reducing nitrogen leaching.
Sulphur as plant nutrient
S is an essential plant nutrient influencing internal and external

quality, plant growth, health and nutrient efficiency of
agricultural crops.
S from sulfate (SO4) sources is readily plant available whereas

S0 has to be oxidized in soil before plant uptake.”
Thus, the above article teaches that sulphur can act as a

fungicide or a plant nutrient, viz., a fertilizer, and that it was
available to plants in the sulphate form.
The Extoxnet article on “Sulfur”, published in September 1995,

teaches that sulphur is used as a fungicide and is “also used as a
Signature Not Verified fertilizer or soil amendment for reclaiming alkaline soils”.
By:AJIT KUMAR
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Date:24.03.2024 10:50
Under the head “Breakdown of Chemical in Soil and
Groundwater”, the article further states that “elemental sulfur is
slowly converted to sulfate in soil by the action of autotrophic
bacteria”.
(ii) The “Technical Bulletin: Oxidation of Elemental Sulfur

in Soils” by the Fertiliser Technology Research Centre of the
University of Adelaide taught the following:
“Sulfate-based fertilizers are immediately available to crops but
are prone to leaching below the root zone in high rainfall
environments. They are low in sulfur (S) content compared to
elemental S fertilizers so transport costs are comparatively
higher
Fertilizers containing elemental S can provide higher S

content, resulting in less dilution of other nutrients compared to
sulfate- containing fertilizers. They also provide S in a form that
is not leached out of the root zone. However, to be plant
available, the elemental S must first be oxidized to sulfate in the
soil.
In soils, oxidation of elemental S is a biologically-mediated

process and a wide range of soil organisms are able to perform
this oxidation, not just autotrophic soil microorganisms like the
Thiobacillus species. Hence all soils have the Inherent biological
capability, to oxidize elemental S.
The smaller the particle size of elemental S, the faster its

oxidation when dispersed in soil.
Oxidation of co-granulated elemental S is affected by the total

elemental S content of the granule (reducing as S content
increases) and granule size (reducing as granule diameter
increases), as both these affect the surface area of elemental S
available for oxidation. Particle size of the co-granulated
elemental S only significantly affects oxidation when fertilizer
granules have low contents of elemental S.
Sulfur (S) is one of the 17 elements essential for plant growth

and the fourth most important after nitrogen (N), potassium (K),
and phosphorus (P) In terms of amounts required by crops.
By:AJIT KUMAR
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Date:24.03.2024 10:50
Elemental S is the most concentrated form of S, and hence will
have lower transport costs and less dilution effects on other
nutrients in fertilizers compared to sulfate-based fertilizers.
Elemental S is riot taken up by crops in the applied form, and
must be converted in the soil to sulfate-S before uptake by plants
or microorganisms.
OXIDATION OF ELEMENTAL S IN SOILS

Oxidation of elemental S (or thiosulfates) in soil is a microbial
process requiring the presence of both water and oxygen (Figure
1).
There is a very wide variety of microorganisms in soil that are

capable of oxidizing elemental S, both bacteria and fungi
(Lawrence and Germida 1988; Tourna et al. 2014), hence
oxidation is not solely dependent on the presence of specific S-
oxidizing organisms e.g. Thiobacillus species.
FERTILIZER ATTRIBUTES AFFECT OXIDATION OF

ELEMENTAL S IN SOILS
Oxidation of elemental S fertilizer is also affected by the

characteristics of the fertilizer. When elemental S is dispersed
through soil, the oxidation of elemental S is faster as the particle
size of the elemental S decreases (Figure 3). This occurs because
oxidation is a surface-based process and surface area increases
dramatically as particle size decreases.
In co-granulated elemental S fertilizers, (i.e. where elemental S

particles are co-granulated with macronutrients (N, P or K) or
with binders/dispersants such as bentonite), the oxidation is
much reduced compared to the elemental S particles of the same
size dispersed through soil (Friesen 1996).
MODELLING OXIDATION OF ELEMENTAL S IN CO-

Signature Not Verified GRANULATED FERTILIZERS
By:AJIT KUMAR
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Date:24.03.2024 10:50
As oxidation of elemental S is a surface-based process, the rate
of oxidation is proportional to the surface area of the particles if
they are dispersed through soil. The specific surface area (SA,
the surface area per unit mass) of a spherical particle equals:
SA = Α/(ρ.V) = (πd2)/(ρ.π d3/6) = 6/(p.d) [1] where A, V and
dare the area, volume and diameter of the spherical particle,
respectively, and p is the particle density. Hence, the oxidation
rate of elemental S particles dispersed in soil is predicted to be
inversely proportional to the particle diameter.
Hence the effective surface area (SAeff) per mass of elemental S

in this case is:
SAeff = 6/(ƒESxpgranxdgran) [2]
where dgran is the diameter of the fertilizer granule. pgran the
density of the granule, and ƒES the mass fraction of elemental S in
the granule (Degryse et al. 2016b). If the area covered by the
individual elemental S particles is less than the original granule
surface area, the particles act as dispersed particles (Figure 5b).
Hence, the surface area available for oxidation for a given
amount of S depends on the concentration of elemental S In the
granule, the original granule size and the particle size of the
elemental S within the granule. The last factor is only important
at low concentrations of elemental S.”
(iii) In Elemental sulfur fertilizers and their use on crops and

pastures by C. C. Boswell and D. K. Friesen, the following
teaching is to be found:
“This paper reviews the use of elemental sulfur (S°) as a
fertiliser and its efficacy in different pastoral and cropping
situations. The effect of S° particle size on rate of oxidation is
critical to the effectiveness of S° fertilisers. Emphasis is
therefore centred on the issue of how particle size of S° affects
the rate of oxidation in different environments and cropping
systems, and the size of S° in different S° fertiliser products.
1. Introduction
Elemental sulfur (S0) is an ideal slow release sulfur (S) fertilizer.

It is 100% nutrient and this restricts the amount of fertilizer
required. It is insoluble in water and therefore stable in damp or
humid conditions. Although S0 is unavailable for plant uptake, it
is oxidized to the plant- available sulfate-S form by soil micro-
Signature Not Verified organisms. The key to its success as a fertilizer is the rate of
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
oxidation from S0 to sulfate. Factors which affect to the use of S0
fertilizer. However this review shows that, given environmental
conditions under which S oxidation can occur (i.e. S-oxidizing
organisms are present and environmental conditions allow
oxidation), then the key factor affecting rate of oxidation is the
size of the particles of S0 applied. Much of this review is
Elemental-S fertilizers
“Elemental sulfur has to be oxidized to sulfate before it can be

taken up by plants. The rate of oxidation is depedent on the
surface area of the particles of So available to be colonized by
oxidizing micro-organisms in the soil. For a given mass the
surface area is inversely proportional to particle diameter.
For rapid oxidation fine So particle size is required (e.g. with
1-2 µ particles in slurry, oxidation is practically
instantaneous). However, very fine particles of So are difficult
to handle and to apply as a fertilizer, are irritating to the eyes
and lungs, and are suspectible to loss by wind or to transfer on
the surface of applied irrigation water. But, most seriously,
fine particles of So represent a fire and explosive hazard. Fine
dry So per se is thus impractical as a commercial fertilizer.”
(iv) GB’005, titled “Process for producing powder-like

sulphur preparations” declares the invention as relating to
“processing of sulphur and, more particularly, to processes for
producing powder-like sulphur preparations”. It discloses, as
its “most advantageous area of application … the production of
a granulated wettable power of sulphur useful in plant
protection …” The specifications further state:
“Such constraints were a feature of S0 based fertilizers for at
least 3 decades. In Australia and New Zealand S0 mixtures
consisted initially of physical mixtures of dry single
superphosphate and dry screened “agricultural” S. The
distribution of particle size of S0 was thus always that of
screened “agricultural” S0 (Table 5). However the importance of
fine S was generally known [16, 47, 69, 85, 87, 147]; it
remained to find a method of applying S in fertilizers which had
high S content, low fire hazard, ready plant availability, could be
easily applied by aircraft, could readily be mixed with other
fertilizers, and had low cost. The range of S0 fertilizers
Signature Not Verified discussed later will show that several alternative fertilizers have
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
met many of these requirements. Much of the recent research has
centred on defining the size of S0 particles required in
agronomically effective fertilizers for a variety of environments.
A process for the production of powder-like sulphur

preparations according to the present invention comprises
preparation of a suspension of sulphur, dehydration thereof to a
paste-like state, followed by granulation of the resulting paste.
Example 1
A suspension of sulphur with the stability of 90% produced by
wet grinding of sulphur is dehydrated in a roll drier to the
moisture con tent of 13%. The resulting paste is subjected to
granulation by extrusion through a die in the form of threads
with the diameter of 3 mm, then dried by air at the temperature
of 80°C on a band drier. The stability of the thus-obtained
sulphur preparation has remained unchanged and equal to 90%.
The resulting granulated product is not ) caked.in storage and
does not lose its quality for a long time.
A wettable powder of sulphur produced by the prior art process
from a suspension of the same quality (90%) after drying in a
spray 5 drier has stability of 75%. Furthermore, its quality is
considerably reduced during a long time storage due to caking
thereof.”
(v) US’442, titled “Water Dispersible Pesticide Aggregates”

teaches the technique of drying on a fluidized bed after spraying
through an atomizer in order to obtain independent granules of
small sizes.
(vi) The FCO (Third Amendment) Order, 2006, which

amended the FCO 1985 inserted, in the FCO 1985, Clause 20B,
which read thus:
“20B. Specifications in respect of customized fertilizers.
Notwithstanding anything contained in this Order, the Central
Government may by order published in the Official Gazette,
notify specification, valid for a period not exceeding three
years in respect of customized fertiliser to be manufactured
by any manufacturing unit”.
Signature Not Verified 5. In the said Order, in the Schedule I-
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
(i) in Part-A, under the heading “Specifications of
Fertilizers”,
(a) after the sub-heading 1(c), the following sub-
heading shall be inserted namely:-
“1(cc). Straight Sulphur Fertilizers.
(1) Sulphur 90% (powder)
(i) Moisture per cent by weight,

maximum 1.00
(ii) Total Sulphur (as S) per cent by weight
minimum 90.00
(2) Sulphur (granular)
(i) Moisture per cent by weight,

maximum 0.5
(ii) Total Sulphur (as S) per cent by weight
minimum 90.00
(iii) Particle size not less than 90 per cent
of the material shall pass through 4.0 mm IS
sieve and be retained on 1 mm IS sieve and not
more than 5% shall be below 1 mm IS sieve.”
37. Thus, the existing prior art, on the priority date of the suit
patent, including App 655, taught
(i) that sulphur could act both as a fungicide as well as a
fertilizer,
(ii) that sulphur could only be absorbed by plants in the form
of sulphate, and not as such
(iii) that conversion of sulphur to sulphate was by bacteria
present in the soil, with no human intervention,
(iv) that the rapidity of absorption of the sulphate by the
plants was critical to the effectiveness of the fertilizer,
(v) that greater oxidation of sulphur to sulphate would take
place if the particle and granule sizes were smaller,
By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
(vi) that sulphur of a strength of 90% w/w was usable as a
fertilizer,
(vii) sulphur formulation with upto 80% sulphur with granule
size above 200 µ and particle size 0.1 to 20 µ,
(viii) preparation of the formulation by wet grinding, which
eliminated all risks by the dry grinding process including
chances of fire and explosion,
(ix) subsequent drying using a fluidized bed method, and
(x) manufacture of powder or granules of 90% sulphur for
use as a fertilizer (in the FCO 2006 Amendment Order).
38. These prior arts constitute literature which is part of the

common general knowledge, available to the PSA on the priority date
of the suit patent. Regarding the PSA as a “skilled craftsman”
(applying the expression used in Bishwanath Prasad Radhey Shyam),
it cannot be said that, via these prior arts, the defendants have not been
able to make out a credible challenge to the validity of the suit patent
on the ground of obviousness from the teachings in prior art.
39. If safeguarding of patent rights is in public interest, equally

eminently in public interest is the need to ensure that inventiveness is
not stifled by allowing patents which are obvious from the teachings
contained in prior art to monopolize the field. If this is allowed, it
would suffocate innovation, and be counterproductive in the long run.
Conclusion

By:AJIT KUMAR
Signing
Date:24.03.2024 10:50
40. As the defendants have succeeded in setting up a credible
challenge to the validity of the suit patent on the ground of
obviousness vis-à-vis prior art, the plaintiff cannot be granted the
interlocutory injunction that it seeks.
41. All applications for interim injunctions, in these suits, are,

therefore, dismissed.
C. HARI SHANKAR, J.
MARCH 18, 2024

By:AJIT KUMAR
Signing
Date:24.03.2024 10:50

Sulphur Mills Injunction Denied, Credible Challenge CHS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(COMM) 1225/2018, CC(COMM) 9/2019 & I.A. 3913/2023

Through: Mr. Hemant Singh, Mr. Hari

DHARMAJ CROP GUARD LIMITED & ANR. .... Defendants

Through: Mr. Prashant Phillips, Ms.

+ CS(COMM) 525/2021, I.A. 15315/2021, I.A. 3860/2023, I.A.

SULPHUR MILLS LIMITED ..... Plaintiff

Through: Mr. Hemant Singh, Mr. Hari

DAYAL FERTILIZERS PVT. LIMITED AND ORS.

Through: Ms. Rajeshwari H., Mr.

Through: Mr. Hemant Singh, Mr. Hari

SULPHUR CROP CARE PVT. LTD. & ORS. ..... Defendants

+ CS(COMM) 621/2021, I.A. 15971/2021 & I.A. 5320/2023

Through: Mr. Hemant Singh, Mr. Hari

MOTI INSECTICIDES PVT. LTD. ..... Defendant

Through: Ms. Rajeshwari H., Mr.

+ CS(COMM) 627/2021, I.A. 16098/2021, I.A. 10877/2022, I.A.

SULPHUR MILLS LIMITED ..... Plaintiff

Through: Mr. Hemant Singh, Mr. Hari

CROP CHEMICALS INDIA LTD. ..... Defendant

Through: Ms. Rajeshwari H., Mr.

+ CS(COMM) 344/2022, I.A. 8074/2022, I.A. 17754/2022, I.A.

SULPHUR MILLS LIMITED ..... Plaintiff

Through: Mr. Hemant Singh, Mr. Hari

SHREE RAM AGRO INDIA & ORS. ..... Defendants

Through: Ms. Rajeshwari H., Mr.

1. The plaintiff in all these suits is the registrant of Indian Patent

Signature Not Verified

2. Applications have been filed, in these suits, by the plaintiff,

3. Detailed submissions were advanced by learned Counsel for all

4. The following submissions have been advanced by the plaintiff,

(i) Sulphur is a known elemental fertilizer for feeding plants.

(ii) Sulphur cannot, however, be directly absorbed by plants.

(iii) Over a passage of time, the content of natural sulphur in

(iv) Traditionally, fertilizers contained sulphur blended with

(v) Existing sulphur containing fertilizer formulations,

(i) The fertilizer had to be applied in high doses,

Signature Not Verified

(iii) Conversion into sulphate and rendering the

(iv) The techniques for application of the fertilizers

(v) In conventional fertilizer compositions, use of

Signature Not Verified

(vi) On dissolution in water, conventional fertilizer

(vii) Sulphuric acid, nitric acid and phosphoric acid,

(vi) Sulphur based agricultural compositions may be

(vii) Over a period of time, the concept of Water Dispersible

Signature Not Verified

(viii) The “Background of the Invention”, containing the field

1. FIELD OF THE INVENTION

2. DESCRIPTION OF THE RELATED ART

SUMMARY OF THE INVENTION:

1. An agricultural composition for application to the soil that

2. The agricultural composition as claimed in claim 1 wherein, at

3. The agricultural composition as claimed in claim 1, wherein the

4. The agricultural composition as claimed in claim 3, wherein

5. The Agricultural composition as claimed in claim 3, wherein

6. The agricultural composition as claimed in claim 3, wherein

7. The agricultural composition as claimed in claim 1 or 3,

(ix) The suit patent arose out of the need to develop a

(x) The bibliographic details of the suit patent are as under:

(xii) The subject matter of the suit patent was, therefore, an

Signature Not Verified

(xiv) The product corresponding to the claimed composition in