Judgment Baboo Lall Jain 1. THIS is an application under Section 64 of the Patents Act, 1970. The petitioner Polar Industries Limited is praying that the Patent being No. 155307 dated 20th February, 1981, sealed and granted by the Controller of Patents and Designs in favour of the respondent No. 1, that is the Jay Engineering Works Limited, be revoked under Section 64 of the Patents Act, 1970. 2. BOTH the petitioner and the respondent arc manufacturers of electric fans. The patent is in respect of split type lower socket for use in ceiling fan motors. The patent granted relates to lower sockets connecting the down rods and shafts of A.C. electric motors of ceiling fans. The claim of the Patents was that the invention was in respect of a split type lower socket for clamping or coupling together the down rod and the shaft of the motor of an alternating current ceiling fan, comprising two halves, each having a trough shaped middle portion and two hollow semi cylinder projections, at each end, the two halves when clamped together defining a chamber of cylindrical or rectangular cross section and tubular projections at either end, the said two halves being adopted to be secured to the down rod and the motor shaft passing through the said tubular projections by bolts passing through holes in the upper projection and the down rod and the lower projection and the motor shaft and fitted with nuts. The case of the petitioner is that the split type lower socket which is the subject- matter of the said Patent is not at all novel, nor does it involve any inventive step, because none of the said essential features and/or combination and or constructional arrangement thereof is or can be novel. The components mentioned in the claims of the respondent No. 1 were known in the industry and largely followed and practised. The further claim of the petitioner is that the alleged invention is nothing but a colourable variation and/or a mere workshop improvement of the embodiment illustrated in Figure 4 of the Drawings. According to the petitioner there is no new concept in using the halves as well as nut and bolt with washer and split pin for the purpose of clamping two components. According to the petitioner there is no new concept in using the halves as well as nut and bolt with washer and split pin for the purpose of clamping two components. According to the petitioner the alleged invention is nothing but formal general knowledge and has been in vogue for a long time, in various mechanical items and/or industries. Even in the fan industry shackles with identical arrangement, have been used for clamping of the rod of ceiling fan with the ceiling hook, and have been known and used since long time prior to the date of the impugned Patent No. 155307. The petitioner has relied on a drawing illustrating such a shackle, dated August 23, 1975. The said drawing which is Annexure II to the petition originates from the respondent No. 1. It is apparent from the said drawing that the shackle is made of the split halves, each of said halves having a trough shaped middle portion and a hollow semicylinder projection at the lower end, as also having aligned holes for bolts to be passed there through, and nut with washer to be fitted at the threaded end of the bolt. According to the petitioner, the concept of providing such clamping arrangement at the lower end, as adopted in the alleged invention was a very old concept and therefore, according to the petitioner, there is no novelty with regard to the alleged invention. The further case of the petitioner is that no patent right can be claimed with regard to socket, under the circumstances as alleged by the petitioner. 3. THE petitioner is also relying on the drawings of another fan manufacturer, viz., Khaitan Fans Pvt. Ltd., a copy whereof is also annexed to the petition. THE said drawing also shows that the shackle of the nature, as shown in the drawing, issued by the respondent No. 1 was in use also by the said M/s. Khaitan Fans Ltd. 4. MR. Gautam Chakraborty, appearing on behalf of the respondents did not dispute that the shackle, as per drawing shown in Annexure II to the petition, has been in use since prior to the application for grant of this Patent. According to MR. Chakraborty the Patent is in respect of lower socket and not in respect of shackle. MR. Gautam Chakraborty, appearing on behalf of the respondents did not dispute that the shackle, as per drawing shown in Annexure II to the petition, has been in use since prior to the application for grant of this Patent. According to MR. Chakraborty the Patent is in respect of lower socket and not in respect of shackle. This is to be noted that shackle is fixed at the top of the rod, by which the fan is hanged and the socket is fixed at the bottom end of the rod to connect the bottom end of the road with the shaft of the fan and as such they are different. It was further contended by MR. Gautam Chakraborty that so far as shackle is concerned, the same does not have a rectangular arrangement in the middle but the same is intended to connect the rod with the hook, which is affixed at the bottom of the ceiling. MR. Chakraborty also contended that no previous common use has been attempted to be shown in the case of socket in hanging a ceiling fan. The contention of Mr. Chakraborty was that a Patent is granted after various steps and proceedings are taken in accordance with the Patents Act. There has to be an acceptance of complete specifications by the Controller under Section 22 of the Patents Act. Then advertisements of acceptance of complete specifications are issued under Section 23. Opportunity is also given to oppose the grant of Patent under Section 25. Experts also examine the claim for grant of Patent and the Controller even has the right to refuse an application for grant of Patent, even where there is no opposition. Mr. Chakraborty, therefore, submitted that in view of the grant of the Patent by the Controller, this Court should accept that the grant was valid and that the claim for invention made by the respondent No. 1 before the Controller was a valid claim which has been heard and decided. 5. MR. Sibaji Sen appearing on behalf of the petitioner relied on the observations of the Supreme Court made in the case reported in AIR 1982 Supreme Court 1444 (Biswanath Prasad Radheshyam v. Hindustan Metal Industries) which are as follows: "The fact that the Controller has granted patent does not give rise to presumption in favour of the validity of the patent. Sibaji Sen appearing on behalf of the petitioner relied on the observations of the Supreme Court made in the case reported in AIR 1982 Supreme Court 1444 (Biswanath Prasad Radheshyam v. Hindustan Metal Industries) which are as follows: "The fact that the Controller has granted patent does not give rise to presumption in favour of the validity of the patent. The grant and sealing of the patent, or the decision rendered by the Controller in the case of opposition, does not guarantee the validity of the patent, which can be challenged before the High Court on various grounds in revocation or infringement proceedings. This position, viz., the validity of a patent is not guaranteed by the grant, is now expressly provided in S. 13(4) of the Patents Act, 1970." 6. THE petitioner is also relying on Section 64(l) (d), (f) and (k) of the Patents Act, 1970, which may be set out below: "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, on the petition of any person interested or of the Central Government or on a counter- claims in a suit for infringement of the patent, be revoked by the High Court on any of the following grounds that is to say - (d) that the subject of any claim of the complete specification is not an invention within the meaning of this Act; (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: Provided that in relation to patents granted under the Indian Patents and Designs Act, 1911, this clause shall have effect as if the words "or elsewhere" had been omitted. (k) that the subject of any claim of the complete specification is not patentable under this Act." The question that arises is whether the subject of the claim was not an invention within the meaning of the Patents Act, 1970 and whether the invention, as claimed, was obvious or did not involve any inventive step, having regard to what was publicly known or publicly used in India or to what was published in India or elsewhere, before the priority date of the claim and whether the subject of the claim was not patentable under the Act ? 7. 7. THE word 'invention' has been defined in Section 2(j) of the Patents Act, 1970 which reads as hereunder: "invention" means any new and useful - (i) art, process, method or manner of manufacture; (ii) machine apparatus or other articles; (iii) substance produced by manufacture, and includes any new and useful improvement of any of them, and an alleged invention." "What are not inventions - THE following are not inventions within the meaning of this Act,- (a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws; (b) an invention the primary or intended use of which would be contrary to law or morality or injuries to public health: (c) the mere discovery of a scientific principle or the formulation of an abstract theory; (d) the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant; (e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance; (f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; (g) a method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacture; (h) a method of agriculture or horticulture; (i) any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products." 8. THE respondent No. 1 relied on a judgment reported in AIR 1976 Delhi 87 (Ram Narain Kher v. M/s. Ambassador Industries, New Delhi and Another) wherein it had been observed as follows : "When an invention is not itself new, the particular use of it for the purpose described in combination with the other elements of the system producing the advantageous results would be a sufficient element of novelty to support the Patent and in a claim for Patent pertaining to air cooler the claimant must specify what particular features of his device distinguish it from those which had gone before and show the nature of the improvement which is said to constitute the invention and the claim that there would be 25 percent additional advantage of added cooled air by fixing the fan at the top of the cooler than in the customary way hitherto known in the front of the cooler must be succinctly stated in the claim before, the Patent authority and must not be left to an inference raised on a general review of the specification. AIR 1930 P.C. 1 and (1906) 23 RPC 745 and (1924) 41 RPC 323 and (1916) 33 RPC 291, Rel. on (paras 5, 6, 7, 13, 14, 16, 17)". The petitioner relied on various observations made by the Supreme Court in the said judgment reported in AIR 1982 SC 1444 (M/s. Bishwanath Prasad Radhey Shyam v. M/s. Hindustan Metal Industries) wherein the Supreme Court held is follows : "21. It is important to bear in mind that in order to be patentable an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement, and must independently satisfy the test of invention of an "inventive step". To be patentable the improvement or the combination must produce a new result, or new article or a better or cheaper article than before. The combination of old known integers may be so combined that by their working inter-relation they produce a new process or improved result. Mere collection of more than one integers or things, not involving the exercise of any inventive faculty, does not qualify for the grant of a patent. The combination of old known integers may be so combined that by their working inter-relation they produce a new process or improved result. Mere collection of more than one integers or things, not involving the exercise of any inventive faculty, does not qualify for the grant of a patent. 'It is not enough' said Lord Davey in Rickmann v. Thierry, (1896) 14 RPC 105 (HL), 'that the purpose is new or that there is novelty in he application, so that the article produced is in that sense new, but there must be novelty in the mode of application. By that, I understand that in adopting the old contrivance to the new purpose, there must be difficulties to be overcome, requiring what is called invention, or there must be some ingenuity in the mode of making the adoption'. As Cotton L.J. put in Blackey and Co. v. Lathem and Co., (1889) 6 RPC 184 (CA), "to be new in the patent sense, the novelty must show invention". In other words, in order to be patentable, the new subject-matter must involve 'invention' over what is old. Determination of this question, which in reality is a crucial test, has been one of the most difficult aspects of patent law, and has led to considerable conflict of judicial opinions." "24. Whether an alleged invention involves novelty and an 'inventive step' is a mixed question of law and fact, depending largely on the circumstances of the case. Although no absolute test uniformly applicable in all circumstances can be devised, certain broad criteria can be indicated : whether the "manner of manufacture" patented, was publicly known, used and practiced in the country before or at the date of the patent? If the answer to this question is 'Yes', it will negative novelty or 'subject- matter'. Prior public knowledge of the alleged invention which would disqualify the grant of a patent can be by word of mouth or by publication through books or other media. If the answer to this question is 'Yes', it will negative novelty or 'subject- matter'. Prior public knowledge of the alleged invention which would disqualify the grant of a patent can be by word of mouth or by publication through books or other media. "If the public once becomes possessed of an invention", says Hindmarch on Patents (quoted with approval by Fry L.J. in Humpherson v. Syer, (1887) 4 RPC 407), "by any means whatsoever, no subsequent patent for it can be granted either to the true or first inventor himself or any other person; for the public cannot be deprived of the right to use the invention.............the public already possessing everything that he could give." "25. The expression "does not involve any inventive step" used in Section 26(1)(e) of the Act and its equivalent word "obvious, have acquired special significance in the terminology of Patent Law. The 'obviousness' has to be strictly and objectively judged. For the determination several forms of the question have been suggested. The one suggested by Salmond L.J. in Rado v. John Tye and Son Ltd., (1967) RPC 297, is apposite. It is : "Whether the alleged discovery lies so much out of the track of what was known before as not naturally to suggest itself to a person thinking on the subject, it must not be the obvious or natural suggestion of what was previously known." 26. 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 more artisan), enowed 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 Farbwarke Hoechst and R. Corporation v. Unichem Laboratories, AIR 1969 Bom. 255 . "51. In our opinion, the finding of the learned trial Judge to the effect that the patent is not a manner of new manufacture or improvement, nor does it involve any inventive step having regard to what was known or used prior to the date of patent, should not have been lightly disturbed by the Appellate Bench. These were, as already observed, largely findings of fact, based on appreciation of the evidence of witnesses and the trial Court had the initial advantage of observing their demeanour in the witness box. Moreover, the approach adopted by the trial Court was quite in conformity with the basic principles on the subject, noticed in an earlier part of this judgment. The patented machine is merely an application of an old invention, known for decades before 1951, for the traditional purpose of scraping and turning utensils, with a slight change in the mode of application, which is no more than a 'workshop improvement', a normal development of an existing manner of manufacture not involving something novel which would be outside the probable capacity of a craftsman. The alleged discovery does not lie outside the track of what was known before. It would have been obvious to any skilled worker in the field, in the state of knowledge existing at the date of patent, of what was publicly known or practised before about this process, that the claim in question viz., mere addition of a lever and bracket did not make the invention the subject of the claim concerned. There has been no substantial exercise of the inventive power of innovative faculty. There is no evidence that the patented machine is the result of any research, independent thought, ingenuity and skill. Indeed, Sotam Singh frankly admitted that he did not known whether Purshottam had made any research or any experiments to produce this combination. Nor does this combination of old integers involve any novelty. Thus judged objectively, by the tests suggested by authorities, the patent in question lacked novelty and invention." 9. THE petitioner also relied on a judgment in the case of Morgan and Co. v. Windover and Co., Vol. VII of the Reports of Patent, Design and Trade Mark Cases 131. Nor does this combination of old integers involve any novelty. Thus judged objectively, by the tests suggested by authorities, the patent in question lacked novelty and invention." 9. THE petitioner also relied on a judgment in the case of Morgan and Co. v. Windover and Co., Vol. VII of the Reports of Patent, Design and Trade Mark Cases 131. In the said case the assignees of a patent for supporting the front of four-wheel carriage by C springs brought an action for infringement thereof against Windover and Co. THE main defences relied on were (a) want of novelty in the patented invention, inasmuch as it consisted in the applying of a known article to an analogous purpose; (b) prior user of the invention by Faithfull. THE defendant went for Trial Court where it was held that the invention was novel and good subject-matter; that the user by Faithfull was experimental; (c) that the plaintiff's were entitled to succeed. THE defendants appealed and the appeal was also dismissed by the Appeal Court. Thereafter, an appeal was preferred to the House of Lords. THE House of Lords held that the intention was not subject-matter for patent, being only the application of a known articles to an analogous purpose without any ingenuity and that the Judgment appealed for must be reversed with costs. It was also held that if a known articles is applied to an analogous purpose, the application is not patentable simply because it produces advantages not produced before. 10. IN the facts of the instant case it is not disputed that split type shackles have been in use since long prior to the application for the impugned patent. The claimed 'Patent' also used a similar type of mechanism both at the lower end of the rod by which the ceiling fan is hanged and also at the top of the shaft of the fan. The mechanisms have been put in a single piece on both the ends being the lower end of the rod and the upper end of the shaft of the fan. In order to be patentable an improvement on something known before or combination of different matters already known, should be more than mere workshop improvement. In any opinion, it cannot be said in the instant case, that the patent registered is an inventive step, or that the same is more than a workshop improvement. In order to be patentable an improvement on something known before or combination of different matters already known, should be more than mere workshop improvement. In any opinion, it cannot be said in the instant case, that the patent registered is an inventive step, or that the same is more than a workshop improvement. Furthermore, it is a mere collection of more than one integers or things, not involving the exercise of any inventive faculty; as such, the same does not qualify for the grant of a patent. It is a device and/or mechanism which had already been in use at the top end of the rod. Merely because the same device and/or mechanism has been made use of at the lower end of the rod to couple it with the upper end of the shaft of the fan by using the same mechanism and or device and merely because the two devices have been joined into a single piece on both sides, it cannot be said that it amounts to a new invention. In my opinion, it is an application of a known mechanism which had already been used for all practical purposes. It was obvious to a skilled worker, in the field concerned, in the state of knowledge existing at and prior to the date of the patent and was to be found in the literature and/or knowledge then available to him. 11. IN that view of the matter, the petitioner is entitled to succeed. There will be an order directing that the Patent being No. 155307 dated 20th February, 1981 sealed and granted by the Controller of Patents and Designs in favour of the respondent No. 1 be revoked. The respondent No. 2 is directed to expunge all entries relating to the said Patent being No. 156207 dated 20th February, 1981 from the Register of Patents and Public Notification of the same is directed to be made. 12. THE respondent No. 1 will pay costs of this application. Stay of operation of this order has been prayed for and is declined. 13. ALL parties to act on a signed copy of the minutes of the operative portion of this order on usual undertaking.