JUDGMENT Madeley, J. - This is a suit u/s 29 of Act II of 1911. The plaint alleges that the Plaintiff has been manufacturing since 1925 corks with composition heads known as Topall Corks and also pots from certain waxy and resinous compositions. Owing to the time taken in cooling in the mould, these compositions need time for hardening before being removed so that the mould can be released for further use. The Plaintiff, therefore, invented a process by which any number of moulds could be made from one mould, and this invention has been in use since 1925. On the 12th March, 1940, Plaintiff took out a patent No. 27300 of this process from the Patent Office, Calcutta. The Defendant infringed this patent in respect of both corks and pots in 1942 and caused the Plaintiff a loss or approximately Rs. 250. Plaintiff, therefore, claims that an injunction restraining the Defendant from infringing his patent be issued and that the Defendant be ordered to produce accounts, and after accounting a decree for damages be passed in his favour. 2. The gist of the Defendant's pleadings is best taken from his oral pleadings. Defendant's written statement contains certain denials which are based on a mistaken idea; for instance para 1 of the plaint is denied, though in fact Defendant's chief ground of defence is based upon the fact stated therein. 3. In the oral pleadings the essential points contained in the written statement have been clearly brought out. Mr. Suraj Sahai advocate says. "My client admits that the process of manufacture was the same for corks. So far as manufacture of pots is concerned they are manufactured from one die. There is no duplication. So far is manufacture of pots is concerned there is no infringement at all. I do not admit the infringement in respect of corks as I challenged the validity of the patent. I challenge it u/s 26, Clauses (d), (e), (f), (i) and (m). Duplication of dies is such a process as is known to everybody and should not have been patented and was in use in British India long before.... I do not press the plea taken in para 15 of the written statement." Para 15 of the written statement is that in January. 1942 the Defendant company had not even come into existence (when the cause of action is said to have accrued). 4. I do not press the plea taken in para 15 of the written statement." Para 15 of the written statement is that in January. 1942 the Defendant company had not even come into existence (when the cause of action is said to have accrued). 4. Defendant also alleged in the written statement and counter-claim that he had left off manufacturing stoppers by the process patented and did not know and had no means of knowing of the Plaintiff's patent, therefore, he is not liable for damages. He also pleads that he made no profits by the use of the process, but actually incurred a loss. In the counter claim he prays that the Plaintiff's patent may be revoked u/s 26 of Act II of 1911. 5. On these pleadings the following issues were framed. 1. Is the patent invalid as alleged by the Defendant? 1. (a) Should the patent be revoked as prayed in the counter claim? 2. Has the Defendant infringed the Plaintiff's patent by using his patented process in making corks and pots? 3. Has the Defendant given up the use of the Plaintiff's patented process? 4. Is the Defendant exempt from damages u/s 30 of the Act? 5. To what damages, if any, is the Plaintiff entitled? 6. Should an injunction restraining the Defendant from using the patented process be granted? 6. The process patented by Plaintiff for duplicating moulds is set forth in the Latter Patent, Exh. 1, which shows that the patent was accepted on the 6th March. 1941, and is explained in the evidence of Mr. G.N. Banerjee Plaintiff in the following way: "I found out that after getting one die made, if a thin matallic sheet is kept on the die and over that a piece of lead, and the lead is hammered, the impression of the die will be transferred on the sheet. The sheet, therefore, becomes a laminar representation of the mould without any body. The idea struck me that if I can solder some lead to the backside of this embossed sheet. It will be almost a perfect duplication of the original die. This process of making one die does not take more than 10 minutes and the cost is insignificant. So I can make any number of dies in my factory in a very small time to increase the output of my factory. It will be almost a perfect duplication of the original die. This process of making one die does not take more than 10 minutes and the cost is insignificant. So I can make any number of dies in my factory in a very small time to increase the output of my factory. This idea was a new one in making dies from one original die. I got it patented. I have been using this since the inception of my business in about 1925." 7. Later on in cross examination he states, "I have no complaint if moulds are duplicated without the help of metallic sheets." 8. Plaintiff states that the English name for the stoppers which he sells is "composition stoppers" but his registered name for them is "Topall Corks". 9. It may be mentioned here that in 1935 Plaintiff took out a patent for certain improvements in the manufacture of combination corks. This relates strictly to the strengthening and improvement of the stoppers themselves and has nothing to do with the duplicating process which was patented in 1940. 10. In order to clear the ground we may say that the main question of fact in the case is decided by the admission of the Plaintiff and the Defendant themselves. 11. As to the use of the Plaintiff's process in 'making pots, Defendant denies that he ever used the-process and Plaintiff admits that, though he suspected the use of his process in relation to pots, he has no evidence of it. Plaintiff does not even use the process himself for stamping pots, because it requires a heavy machine which he cannot afford. It seems clear, therefore, that Defendant has not infringed the patent in respect of pots. He, however, admits the use of the patented process in respect of stoppers so that he has infringed the patent. 12. It follows that in respect of stoppers issue No. 2 is decided in favour of the Plaintiff, but in respect of pots it is decided in favour of the Defendant. 13. As to issue No. 3, Defendant has given evidence to prove that he has given up the use of the Plaintiff's patented process. There is no evidence to rebut this, and I believe the evidence he has produced. I, therefore, decide issue No. 3 in favour of the Defendant. 14. The main contested issues are issues Nos. (1) and (1)(a) 15. There is no evidence to rebut this, and I believe the evidence he has produced. I, therefore, decide issue No. 3 in favour of the Defendant. 14. The main contested issues are issues Nos. (1) and (1)(a) 15. I shall deal first the other grounds of objection to the patent and the other grounds for revocation. 16. Section 26(f) "that the invention is of no utility". Defendant states that between January and June 1942 Ramesh put this new business into his head. Ramesh showed him this process by means of metal plates. Ramesh recommended a workman called Sumer to him because he knew this manufacturing business, and Sumer worked with him for some months. He did not know at the time that Sumer had worked for the Plaintiff but he came to know later. 17. Sumer, D.W. 3, states that he used once to cut grass for Ramesh Babu before being taken on by the Plaintiff for whom he worked for 9 and 10 years. Ramesh Babu subsequently introduced him to the Defendant. Ramesh Babu once came to the Plaintiff's office and he knew that witness knew something about this work. He was employed by the Defendant on Rs. 16 per month. He worked for 2 months. For one month he made boxes and for the other corks, and while he was making corks he worked day and night. During one day and night he made nine gross, and he worked like this for one month with two or three days off. 18. Plaintiff has been using this process since he began business in 1925, but, as his business was in a struggling state, he did not take out a patent. When he thought his business was growing in proportion and people might imitate his process he got it patented in 1940. Plaintiff has been paying income tax since 1939. According to both Plaintiff and Defendant other persons are using this process, besides Plaintiff and Defendant. It appears from the evidence that the duplicated mould, which does not produce such a clear impression on the top of the stopper, could just hold its own till the outbreak of the war but after that the process became important probably on account of the scarcity of stoppers. It appears from the evidence that the duplicated mould, which does not produce such a clear impression on the top of the stopper, could just hold its own till the outbreak of the war but after that the process became important probably on account of the scarcity of stoppers. In my opinion there can be no doubt about the utility of the process and the patent is not bad on the grounds stated in Section 26(f). 19. Section 26(i), no evidence has been adduced and no arguments put forward to show that the patent was obtained on any false suggestion or representation. 20. Section 26(m), There is no evidence of the amount of profit obtained by the Plaintiff before the patent was taken out. All we know is that he first paid income tax in 1939 and applied for the patent in 1940. Plaintiff says that he was getting practically nothing from the corks before 1939, and that the business was a struggling one. In 1942 he paid about Rs. 300 income tax. His profits were about.Rs. 15,000, but he cannot say how much was for stoppers and how much for corks. Defendant states that he himself in using the process actually lost money in 1942. No serious attempt has been made to show that Plaintiff made excessive profit out of the process before he patented it. Defendant, therefore, cannot succeed u/s 26(m). 21. Section 26(d) and (e) are more important. It is argued first that the invention is lacking in subject matter, i.e. that it is obvious and does not involve any inventive step having regard to what was known or used prior to the date of the patent; and secondly that prior to the date of the patent the invention was worked on a commercial scale and not merely by way of reasonable trial or experiment. No general rule can be laid down as to what does or does not constitute invention. The general criterion seems to be whether that which is claimed lies within the limits of development of some existing trade. in the sense that it is such a development as an ordinary person skilled in that trade could, if he wished so to do, naturally, make without any inventive step (Halsbury's Laws of England (2nd Edition Vol. 24, page 586). 22. in the sense that it is such a development as an ordinary person skilled in that trade could, if he wished so to do, naturally, make without any inventive step (Halsbury's Laws of England (2nd Edition Vol. 24, page 586). 22. If we examine this patent, we find that it consists in the main of two parts (1) taking of the impression of the original die on a thin metal sheet and (2) soldering or fixing to the backside of the sheet some hard substance so that the sheet without the body behind it can itself be used as a die. The first part of this is not new, Such an impression can be taken, for instance with silver paper, and is no doubt often taken by children. The novelty of the invention consists, in my opinion, in the ingenuity which enabled the inventor so to fix a solid background that the embossed sheet could itself be used as a die. In my opinion there is subject matter in this invention, i.e. it did require inventive skill to think of the method by which the embossed metal sheet could be made useful as a die. No doubt the embossed stopper produced by this method was only a rather inferior copy of the embossed stopper produced from the original die. But novelty need only be established in the process of manufacturing, not in the article produced Novel combination of two known ideas may be sufficient to establish novelty of subject matter in this respect (see also Halsburry's Laws of England para 1136 of the same volume). The particulars given by the Defendant in para 1 of his particulars filed on the 10th December, 1943, are not helpful, and he has made no attempt to prove that in those manufactures the same process is used. 23. The second consideration is, however, very much more serious for the Plaintiff. According to Halsbury's Laws of England (2nd Edition) Vol. 24, page 586, even if the patent was secretly worked on a commercial scale, this is sufficient. This subject is more fully dealt with in para 1163 of the same volume of Halsbury's Laws of England. 23. The second consideration is, however, very much more serious for the Plaintiff. According to Halsbury's Laws of England (2nd Edition) Vol. 24, page 586, even if the patent was secretly worked on a commercial scale, this is sufficient. This subject is more fully dealt with in para 1163 of the same volume of Halsbury's Laws of England. It is stated, "If such user is made in the presence of persons other than the inventor, who are in no way bound by any confidential relationship not to disclose the invention or the user, and in circumstances which enable them to appreciate the essentials of the invention, the user would in general constitute publication, although it was experimental only", and in para 1163 it is stated that secret user on a commercial scale is sufficient to invalidate a patent. "In Patents for Inventions" by Walker and Foster the subject is dealt with at page 60. It is said that private or secret user will not invalidate the patent unless such user has resulted in the production of something which has been publicly sold. 24. Terrell on Patents (8th Edition) at page 90 says that prior to the Act of 1932 there was a difference of opinion whether secret working of the invention for profit prior to the patent would invalidate the patent but the bulk of authority was in favour of the view that that was the case. The view, however, was based on a clause in the Statute of Monopolies that only those inventions were protected which others at the time of making such Letters Patent shall not use. 25. The law on the point of secret user is now clear in England, and though the special terms, on which legal opinion in England was based before 1932, do not exist in Act II of 1911, the terms of Section 26(d) "that the invention was not, at the date of the patent a manner of new manufacture or improvement" seem to cover the same ground. In Lallubhai Chakubhai Jariwala Vs. Chimanlal Chunilal and Co., AIR 1936 Bom 99 , it was held, "If the invention is being put into practice before and at the date of the grant, the grant will not be for a new intention or manufacture, and this applies equally whether the invention is being practised by the patentee himself or by others. Chimanlal Chunilal and Co., AIR 1936 Bom 99 , it was held, "If the invention is being put into practice before and at the date of the grant, the grant will not be for a new intention or manufacture, and this applies equally whether the invention is being practised by the patentee himself or by others. A use of the invention for the purposes of trade may constitute a prior user which invalidates the patent." 26. The provisions of Section 38 seem to reinforce this argument. This section permits a patent to be granted if disclosure has taken place through fraud or breach of confidence, provided that the applicant applies within six months of its coming to his notice. It seems, therefore, that where the disclosure takes place about 15 years before the application and through no fraud or breach of confidence, the patent must be invalid. 27. Plaintiff has been selling corks stamped by this process openly in the market since 1925. He patented it only in 1940, because he thought people might imitate it. He professes to be able to distinguish corks stamped by his process. He admits that from 1926 to 1940 a number of persons were employed in his factory and some of them were dismissed. Sumer, who knew how to do the work for Defendant, was one of them. Plaintiff has reason to believe that another firm in Ganeshganj is using his process. He does not remember whether the Manager of this firm said he had been manufacturing these corks from before the date of the patent. It does not appear that Plaintiff's workmen were made to promise to keep the process secret. Mr. Ramesh, who introduced Defendant to the method, obviously knew it from Sumer and many more may have known it too. Defendant swears that he has seen Redcombe and Company using the process. Sumer has also worked at Redcombe and Company. The Plaintiff's witness examined on commission says that he purchased corks similar to Topall Corks elsewhere two or three times (i.e. from persons other than the Plaintiff). But this was many years after they were introduced by the Plaintiff. He says that the other firm did not seem to be manufacturing on a large scale. 28. Coming to Indian authorities on the subject. Lallubhai Chakubhai Jarivala Vs. Shamaldas Sankalchand Shah, AIR 1934 Bom 407 , has been cited. But this was many years after they were introduced by the Plaintiff. He says that the other firm did not seem to be manufacturing on a large scale. 28. Coming to Indian authorities on the subject. Lallubhai Chakubhai Jarivala Vs. Shamaldas Sankalchand Shah, AIR 1934 Bom 407 , has been cited. The whole of the case is useful for the purposes of this case, but it is only necessary to quote the last headnote. "Section 38 allows a secret user for a reasonable profit; where there has been no more than a secret use of the invention by the inventor with a view to taking out a patent or the manufacture for the inventor and under injunctions as to secracy by a manufacture the patent will be good. But this will not to be the case where the secret process has been used for profit or where the invention was communicated to a third person in a manner which both in law and in equity allowed him to do what he liked with the invention". 29. At page 240 of the judgment of Rangnekar J. it is stated "In the first place, having regard to the nature of the process and the class of persons who would be employed as workmen and the class to which they belonged, I doubt whether they would be able to know this particular chemical process. But if they knew it, that would be publication and not a prior user, and that is not pleaded." 30. In my opinion there has certainly been publication in the present case, not because the articles were sold in the open market. For though Plaintiff, and presumably others, can tell whether a duplicate die has been used, that is not the point. The question is whether from looking at the corks they could infer the nature of the process used other than the fact that the die was a duplicate. It seems clear to me that they could not. In Lallubhai Chakubhai Jariwala Vs. The question is whether from looking at the corks they could infer the nature of the process used other than the fact that the die was a duplicate. It seems clear to me that they could not. In Lallubhai Chakubhai Jariwala Vs. Chimanlal Chunilal and Co., AIR 1936 Bom 99 , it is stated, "the quantity of the goods sold may be immaterial, as the secret of the process cannot be detected whatever may be the quantity of the goods sold." The reason why I think that there has been publication is that Plaintiff employed a number of workmen, some of whom left him and who were, as the case of Sumer shows, well able to understand the process. Ramesh Babu got to know of it. Redcombe and Company got to know of it. P.W. 1 was able to buy such corks from other firms as well. It is true that publication was not specifically pleaded in this case. But a secret process, of which publication has been going on for 15 years by manufacture with the aid of workmen who are not bound to secrecy, is no longer secret. It becomes public property and the invention patented, therefore, at the time of the patent lacked novelty. The invention was not at the date of the patent a manner of new manufacture. According to Section 2(8) invention means a manner of new manufacture. 31. I hold therefore that the Plaintiff's patent is invalid. Not only had he been manufacturing corks by this process and selling them in the market for 15 years before the patent was taken out, but also he took no precautions to keep the process secret. His workmen, under no pledge of secrecy, got to know of the process and may have divulged it to others. Sumer certainly had. It is not proved, but it is very probable, that others were using the process before he took out the patent. The evidence rather points in that direction, and since he went on manufacturing for 15 years before applying for a patent, it is very probable. 32. In my opinion the Plaintiff's case must fail on this ground. I shall, however, deal shortly with the other issues. 33. Issue No. 4. The Plaintiff did not stamp his corks "patented" at all much less did he put the year and number of the patent upon them. 32. In my opinion the Plaintiff's case must fail on this ground. I shall, however, deal shortly with the other issues. 33. Issue No. 4. The Plaintiff did not stamp his corks "patented" at all much less did he put the year and number of the patent upon them. It is true that Ramesh introduced Sumer, who had worked with Plaintiff, to him. Sumer left the service two or three years ago and Plaintiff's patent was not accepted till the 6th March, 1941. Defendant refused to believe in the patent from the very beginning. In view of the fact that Plaintiff had worked his process for 15 years without applying for a patent and there was no notice of the patent having been taken out stamped on the articles, I see no reason to disbelieve the Defendant when he says that he did not know about it. He says that he did not Consider it his duty to enquire from the Patent Office when there was no mention on the corks and there was nothing to draw his attention to the patent. At the time when Sumer was introduced to him as a man who knew the process for manufacturing corks, Defendants says he did not know that he had worked for Plaintiff though he discovered later. 34. In my opinion even if Plaintiff's patent were valid, Defendant would be exempt from damages u/s 30. 35. For both these reasons it is not necessary to go into the question of damages. 36. Issue No. 6 is decided in favour of the Defendant. 37. I, therefore, dismiss the Plaintiff's suit with costs and grant the Defendant's counter claim for revocation of the patent u/s 26(d) and (e) of Act II of 1911. Defendant will get costs of his counter claim.