The plaintiff (Dhanpat Seth & others) have filed a suit seeking grant of permanent prohibitory injunction restraining the defendant (Nil Kamal Plastic Crates Ltd.) for infringing his Patent No. 195917 dated on 24th May 2002.

The patented device used for manually hauling of agriculture product is an improvement over a local product known as ’Kilta’ made of bamboos. The plaintiff have sued the defendant in year 2005 for damages caused by supplying of similar device to the Department of Horticulture, Government of Himachal Pradesh and some private parties, and also for issuance of mandatory injunction directing defendant not to infringe the patent.

The defendant filed detailed written reply with written statement. The defendant has also filed an application for revocation of patent stating that the so-called device, got patented by the plaintiff is not an invention within the meaning of Section 2(j) of the Indian Patent Act, because it is not a new product. As per Section 2(j) of the Indian Patent Act an invention mean a new product or process involving and inventive step and capable of industrial application. On merits it is alleged that the alleged patented invention is nothing but imitation of traditional ’Kilta’, the only difference being that the traditional ’Kilta’ is made of bamboos, while the product of plaintiffs is made of synthetic polymeric material.

During the course of the hearing the defendant produced all three devices and just by visual comparison of the three things indicated the patented device of the plaintiff and the product of the defendant are nothing but imitations of the traditional ’Kilta’. Further the defendant had produced documents of the plaintiff, which show that the patented article has been manufactured and introduced in the market more than a month prior to the making of patent application.

The plaintiff then urged that he should entitled to the relief of injunction by mere proof of fact that the product is patented and the statutory provision of Section 48 of Indian Patent act gives the patentee, an excusive right to prevent third parties, who do not have his consent, from making, using, offering for sale, selling or importing the patented product.

The Hon’ble Supreme Court of India said in this case that patent is granted in respect of an invention or a new invention and even after the grant of patent, there is no warranty about the validity of the patent, as per Section 13(4) of the Indian Patent Act. Again, claim to an invention can be challenged, even after it is patented, on a number of grounds mentioned in Section 64 of the Indian Patent Act. Not only this, all these grounds are available as defenses to a defendant, in a suit filed by the patentee alleging infringement of patent, as per Section 107(2) of the Act.

It was held that the plaintiff is not having a prima facie case and not entitled to relief of Interim injunction.