Judgment Ruma Pal, J. 1. THIS suit has been filed by the petitioners inter alia for a perpetual injunction to restrain the defendants from infringing Patent Nos. 169335, 170231 and 169362, for delivery of apparatus manufactured in accordance with the patents; for a decree for Rs.4 crores for the loss and damage suffered by the plaintiff or for such sum found on enquiry. The present application is in aid of the reliefs claimed in the suit. Apart from an injunction restraining the defendants from infringing the patents referred to above a claim has also been made for appointment of a special Receiver to collect the apparatus manufactured in infringement of the patents and other consequential reliefs. 2. ACCORDING to the petitioners the petitioner No. 2 had made three applications between the period 28.6.88 and 22.7.88 under the Patents Act, 1970 for grant of a patent in respect of three inventions. All three inventions relate to parts of acetylene generators. The first patent namely Patent No. 169362 relates to improvements in or relating to improvements for feeding carbide in acetylene generators. The second patent being Patent No. 169335 relates to "improvements in or relating to carbide-to- water Type apparatus for generating gases like Acetylene". The third patent being Sl. No. 170231 relates to "improvements in or relating to apparatus for generating acetylene including moisture preventing means". 3. THE petitioners, for the purposes of this application are pressing their case only in respect of a part of Patent No. 169335. It is therefore not necessary to consider the details regarding the other two patents. 4. THE application in respect of patent No. 169335 was made on 28th June, 1988 and was advertised in the Official Gazette on 28th September, 1991 after acceptance. On 12th November 1991 notice of acceptance of complete specification relating to the patent in question was issued by the Controller of Patents to the petitioner No. 2. THE patent was granted and sealed on 4th September, 1992. On 12th November 1991 notice of acceptance of complete specification relating to the patent in question was issued by the Controller of Patents to the petitioner No. 2. THE patent was granted and sealed on 4th September, 1992. According to the petitioners, the claims as accepted and published in respect of the patent in question were as follows: "1) An improved carbide-to-water type apparatus for generating acetylene by the interaction between carbide and water which comprises in combination- a) a generator shell equipped with agitators or churners for intimate mixing of calcium carbide and water; b) means for feeding calcium carbide to water maintained at a predetermined level inside the generator shell; c) means for controlling pressure and temperature within the generator vessel so as to achieve non-elevation of temperature and avoidance of excess pressure build up; d) means for controlling level of water inside the generator; e) means for drawing out acetylene from the generator; f) means for preventing lumps and/or unreacted carbide from going out through slurry drain valve and; g) means for removal of lime sludge from the generator shell." 2) An apparatus as claimed in claim 1, wherein the agitators or churners are mounted on a shaft rotating along the axis of the generator vessel. 3) An apparatus as claimed in Claim 1 or 2, wherein the said means for preventing lumps and/or unreached carbides from entering the slurry drain valve comprises a wire mesh, screen or sieve tray. 4) An apparatus as claimed in Claim 3, wherein the said wire mesh, screen or sieve tray is fabricated from any material compatible with acetylene and lime slurry. 5) An apparatus as claimed in Claim 4, wherein the said material is mild steel which may optionally be coated with anti-corrasive paint. 6) An improved carbide-to-water type apparatus for generating acetylene by the inter-action between calcium carbide and water, substantially as herein-before described and illustrated with particular reference to the accompanying drawing. 5. AT the hearing the petitioners put forward their case on the basis of claim 3. 6. THE drawing accompanying the specification indicates the wire mesh as being at an angle to the drain valve. 5. AT the hearing the petitioners put forward their case on the basis of claim 3. 6. THE drawing accompanying the specification indicates the wire mesh as being at an angle to the drain valve. According to the petitioners, on 7th February, 1994 and 12th February, 1994 the respondent No. 1 submitted pre-qualification bid to Rourkela Steel Plant, Steel Authority of India Ltd. in respect of a tender dated 28th December, 1993 in which the respondent No. 1 had incorporated in particular, the invention of the wire mesh described in the complete specification relating to the patent in question. 7. ON 3rd March 1994 the petitioner No. 2 says that he assigned his right, title and interest in respect of the said patent in favour of the petitioner No. 1. ON 9th March 1994 the respondents submitted further drawings to Rourkela Steel Plant which according to the petitioners infringed the patent. The petitioners have said that they came to know of the infringement for the first time on 11th April 1994. Immediately thereafter they wrote to the respondents alleging infringement of their patents. This was denied by the respondents by a letter, dated 9th May 1994 denying any infringement of any alleged patent of the petitioners. The petitioners then wrote to the Steel Authority of India Ltd. from which it appears that the petitioner No. 1 was participating in the tender dated 28th December 1993. Documents were enclosed with the letter for the perusal of the Steel Authority of India Ltd. by which the petitioners claimed the superiority of the plants supplied by the petitioner No. 1. The negotiations continued between the petitioner No. 1 and the Steel Authority of India regarding the supply of acetylene plants by the petitioner No. 1 to Rourkela Steel Plant. The petitioners also sent Xerox copies of Patents Nos. 169632 and 169335 for the acetylene generators. It appears that the respondents filed several caveats under Section 148A of the Code of Civil Procedure apprehending litigation by the petitioners in respect of infringement of patents. The caveats were filed in City Civil Court, Calcutta, in the Court of the Civil Judge, Rourkela, the Judges Court, Alipore and in this High Court. In the meantime, on 24th May 1994 the respondents through their advocate filed an application before the Controller of Patent Office for cancellation and/or revocation of the three patents including Patent No. 169335. The caveats were filed in City Civil Court, Calcutta, in the Court of the Civil Judge, Rourkela, the Judges Court, Alipore and in this High Court. In the meantime, on 24th May 1994 the respondents through their advocate filed an application before the Controller of Patent Office for cancellation and/or revocation of the three patents including Patent No. 169335. The respondent's application was replied to by Controller of Patents and Design on 17th June, 1994 in which it was stated that the Controller had no power to revoke a patent granted by him and if the respondents so desired, they may file a petition for revocation of the patents under Section 64 of the Patents Act, 1970 before the appropriate High Court. 8. ON 7th July 1994 the petitioner No. 1, Industrial Gases Ltd. wrote to the Steel Authority of India, stating reasons why the petitioner No. 1's offer was better than the "competition" and that various factors should be considered at the time of evaluating the tenders of the competition. According to the petitioners, on 11th April 1994 they received the drawings submitted by the respondent No. 1 to Rourkela Steel Plant and came to learn that the drawings submitted by the respondents to the Rourkela Steel Plant were virtual reproductions of the drawings accompanying the petitioner's patents and that it was evident that the respondents had infringed the patents granted to the petitioner. 9. AFTER that, the suit was filed by the petitioners in September, 1994 and the interim application made on 6th December, 1994. Three applications were filed by the respondents in the High Court for revocation of the three patents. These applications are still pending. 10. SIMPLY stated the petitioners case is that the wire mesh or tray placed at the mouth of the outlet of the generator was a feature which was not part of any of the designs of acetylene generators used by any other established manufacturers of acetylene generators. It is said that although a sieve was a matter known for a long time but its use in a manner in combination with other elements so as to produce a result in a more expeditious, better and economical manner could validly be the subject matter of patent. Reliance has been placed on the decision reported in AIR 1936 Bom. 99. Reliance has been placed on the decision reported in AIR 1936 Bom. 99. It is contended that the grant of the patent was a prima facie reason for supposing the patent to be a valid one. The decision reported in (1975) 1 All E.R. 504 has been cited in this context. It is also submitted by the petitioners that from the drawings submitted by the respondents to the Rourkela Steel Plant it was clear that the respondents had infringed the petitioners patents by including a filter screen as patented by the petitioners. Finally it is submitted that there was a serious question to be tried and as such the petitioners are entitled to interim relief. It has been stated that the petitioners are willing to give an undertaking to pay damages in the event the petitioners are ultimately unsuccessful in the suit. The last submission of the petitioners is that the balance of convenience is in favour of granting interim relief as frayed because the respondent had not adduced any evidence that they had in fact, sold generators containing entire combination of claims specified in the patent. It is said that the respondents and the petitioners are competitors. It is said that the respondents did not obtain any interim relief in their application for revocation of the patents and as long as the patents remained registered in favour of the petitioners, the petitioners have statutory rights and are entitled to an injunction. Apart from the decisions already cited the petitioners have relied upon Section 48 of the Patent Act, 1970 (hereinafter referred to as the Act) as well as the decision of the US Supreme Court in 52 LED USSCR 1122. It is contended that the respondents cannot be prejudiced if the injunction is granted preventing the respondent from manufacturing, selling or using acetylene generators with the wire mesh because the respondents themselves in their application for revocation of Patent No. 169335 had stated that provision of such wire mesh, screen or sieve tray would result in culmination of slurry in the discharge pipe and hamper normal operation of the generator. It is contended that even if all the claims in the complete specification relating to Patent No. 169335 could not be sustained, the Court should grant injunction in respect of even one valid claim. It is contended that even if all the claims in the complete specification relating to Patent No. 169335 could not be sustained, the Court should grant injunction in respect of even one valid claim. Reference has been made to Section 114 of the Act as well as the decision in 1965 RPC 503. The respondents say that the patent had been granted in respect of composite improvement to acetylene generators and the petitioners could not select one component and pray for protection on the basis of that. Secondly, the respondents have submitted that the petitioners' patents were not inventions at all. It is said that the patent could not have been granted in respect of the wire mesh alone under the provisions of Sections 3(a), (d), (f) and (g) of the Act. Thirdly, it is submitted that the rights of the petitioners under Section 48(2) of the Act are subject to the other provisions of the Act particularly Sections 2(j), 3, 64(d), (e) and (f), 83 and 107. Fourthly, it is submitted that no particulars of infringement have been given in the petition. The next submission is that both the suit and the application were grossly delayed and that this should weigh with the Court in refusing grant of interim relief to the petitioners. According to the respondents the delay is also indicative of the fact that the petitioners had not come with clean hands. The petitioners according to the respondents had in fact plagiarized the entire alleged invention from the ISI specifications practically verbatim. The method in which the petitioners had obtained a copy of the respondent's drawings submitted to the Rourkela Steel Plant is, according to the respondents further evidence of the misconduct on the part of the petitioners. 11. IN fact, according to the respondents the petitioners were really seeking to procure breach of the contract between the Steel Authority of India and the respondents for supply of acetylene generators by initiation of the present proceedings. 12. APART from the merits the respondents have also submitted that the suit itself is not maintainable as there was a claim for perpetual injunction which relief could not be granted when the petitioners have themselves claimed and quantified the damages. 12. APART from the merits the respondents have also submitted that the suit itself is not maintainable as there was a claim for perpetual injunction which relief could not be granted when the petitioners have themselves claimed and quantified the damages. Finally on the question of balance of convenience it has been submitted that this was in favour of the application being dismissed as the respondents had been using the process for a long time at least since 1982 and the prejudice caused to the respondent will be far greater than what might be suffered by the petitioners if the injunction is granted but the suit is ultimately dismissed. The respondents have also relied upon certain decisions which will be considered at an appropriate stage. There are certain broad principles in the background of which the facts of this case will have to be considered. The first is that a patent is granted only in respect of an invention (vide Sections 6 and 7 of the Act). The second principle is that in a suit for infringement of a patent every ground on which the patent may be revoked is available as a ground of defence (vide Section 107). 13. KEEPING these principles in mind, in my opinion on the basis of materials at this stage no interim order can be granted on this application as prayed. 14. PRIMA facie it appears that what the petitioner is claiming to protect is not an invention at all but part of one. At the hearing the petitioner has abandoned its case in respect of the two other patents and pressed its case only in respect of a part of the invention under Patent No. 169335. The petitioner's application for the patent was in respect of an improved apparatus for generating acetylene. All applications for grant of patent are required to be accompanied by a provisional or a complete specification. A specification describes the invention and its operation or use and the method by which it is to be performed. A specification includes a claim or claims defining the scope of the invention for which protection is claimed (vide Section 10 (4) (c)). The claim or claims relate to a single invention. A specification describes the invention and its operation or use and the method by which it is to be performed. A specification includes a claim or claims defining the scope of the invention for which protection is claimed (vide Section 10 (4) (c)). The claim or claims relate to a single invention. The invention in this case is the entire apparatus which has expressly been stated in the specification to be comprised in a combination of seven features in Claim I. The subject matter of the present application therefore is one part of the apparatus namely the means for preventing lumps from passing out through the slurry drain valve. The petitioner's case has not been pressed in respect of the several other components of the apparatus. In other words, of the 6 claims contained in the complete specification referred to in an earlier paragraph of this judgment, the petitioner has restricted the claim to one viz. Claim 3 with reference to part of the apparatus in clauses (f) and (g) of the first claim. 15. NOW the patent was granted for the whole apparatus. The question is whether the rights available to the petitioner as patent holder of the composite structure/process can be claimed in respect of a part and if it can be so claimed whether the part is an invention within the meaning of the Act. 16. THE word "invention" has been defined in Section 2(j) as meaning any new and useful- (i) art, process, method or manner of manufacture; (ii) machine, apparatus or other article; (iii) substance produced by manufacture, and includes any new and useful improvement of any of them. Certain invention, however, are not patentable under Chapter II of the Act. Section 3 describes what are not inventions for the purposes of the Act. These include an invention which is frivolous [Section 3(a)]; 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 project or employs at least one new reactant [Section 3(d)]. Mere arrangement or re-arrangement or duplication of known devices which function independently of one another in a known way is not an invention [Section 3(f)]. Mere arrangement or re-arrangement or duplication of known devices which function independently of one another in a known way is not an invention [Section 3(f)]. Similarly, a method or process of testing applicable during the process of manufacture for rendering a 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 is also not an invention for the purpose of the Act [Section 3(g)]. The actual article on the basis of which the petitioner has claimed infringement is a wire mesh or sieve. The Court can take judicial notice of the fact that a wire mesh or sieve is an article in common use for the purpose of filteration. By itself it would not be patentable under Section 3 and particularly Section 3(d) of the Act. It is no doubt a useful object but it cannot be said to be new within the meaning of Section 2 of the Act. 17. THE argument of the respondents that the use of the wire mesh as a filter in an acetylene generator is also not a new use of a known object appears at this stage to be correct. In the specifications prescribed by the Indian Standards Institution for acetylene generator : medium pressure, stationary, of carbide-to-water type, it is prescribed that in every such generator suitable means for draining water seals likely to become thickened by the deposit of residue must be provided (5.6 of the specifications). In specification 12 the idea of usage of filters in a generator is envisaged. In specification 17.6 there is a requirement that the gas outlet "shall be in a way that their effect cannot be impeded or destroyed by humidity, line, choking or clogging". Given these essential requirements it is doubtful that the use of the wire mesh before an outlet drain can be said to be inventive step. 18. IT is noteworthy that the ISI specifications were published in 1977 whereas the application for patent in question was made about 10 years later. Given these essential requirements it is doubtful that the use of the wire mesh before an outlet drain can be said to be inventive step. 18. IT is noteworthy that the ISI specifications were published in 1977 whereas the application for patent in question was made about 10 years later. Thus the article, the process and the use being known it would appear at least prima facie that the placement of the wire mesh at the mouth of the drain to stop clogging of the outflow would naturally suggest itself to a person thinking on the subject and did not involve any ingenuity on the part of the petitioners. (See M/s. Bishwanath Prasad Radhey Shyam v. Hindusthan Metal Industries, (1979) 2 SCC 511 and Press Metal Corporation Limited v. Noshir Sorabji, AIR 1983 144. 19. THE decision of the Court of Appeal in Hoffmann-La-Roche and Co. v. D.D.S.A. Pharmaceuticals Ltd., (1965) RPC 503 is distinguishable on facts. In that case the petitioners were the holders of a patent of a chemical substance known as Librium which is used as a tranquilizer. There were three claims made by the petitioners in the specification on the basis of which the patent was granted. THE defendants were selling the same substance under a different trade name. On an action against the defendants for infringement, it was contended by the defendants that two of the claims were invalid and that the petitioners could not have the benefit of exclusive user under the patent only on the basis of the third claim. There was no dispute that the third claim was a valid one. It was in this context that the Master of the Rolls observed: "even if claims 1 and 2 are so wide that the probability is that they are invalid, nevertheless it is plain that claim 3 is, valid. This brings me to Section 62 of the Patents Act, 1949 which provides in sub-section (1) If in proceedings for infringement of a patent it is found that any claim of the specification, being a claim in respect of which infringement is alleged, is valid, but that any other claim is invalid, the Court may grant relief in respect of any valid claim which is infringed". 20. 20. IN this case the other claims have not been pressed at all by the petitioners and I am prima facie satisfied as to the invalidity of the claim pressed. Thus assuming that the petitioners can base their case on one or some of the claims in the complete specification, in view of the fact that there are serious grounds for doubting the validity of the claim, the principles in the Librium case will not apply. The mere fact that the petitioners are the registered owners of the patent does not give rise to any presumption of validity of the patent. As observed by the Master of the Rolls : "It seems to me that when you have, as here, a patent of such long standing, widely used and much respected throughout the world, with no citation against it and not challenged over all these years until now, there is prima facie evidence of the validity of the patent." 21. HERE there is no much proof of wide user or world-wide respect. Indeed there is no evidence of the commercial sale of the patented product by the petitioners except for the particular tender negotiations with SAIL. 22. I do not read the decision in American Cyanamid v. Ethicon Ltd., (1975) 1 All E.R. 504, as an authority for the proposition that mere registration of the patent does away with the need for the petitioner arguing in support of patent to establish a prima facie case or that the registration of the patent by itself shifts the onus of proving invalidity of the patent on the defendant. In the case of American Cyanamid the petitioner was admittedly claiming a patent in support of a new use for a known substance. There was no dispute in this regard (vide page 507 of the Reports). In the case of American Cyanamid the petitioner was admittedly claiming a patent in support of a new use for a known substance. There was no dispute in this regard (vide page 507 of the Reports). It is true that some observations have been made that the grant of patent is a good prima facie reason "in the true sense of that term" but in another portion of the judgment it has been said : "So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." It is incumbent on the petitioner, therefore, to make available material to the Court to show that he has a "real prospect of succeeding" in his claim for permanent injunction. 23. THE American Cyanamid's case also did not hold that a registered proprietor of a patent was entitled to an injunction as a matter of course. Apart from the arguable case test, the petitioner would still have to prove that the balance of convenience was in favour of granting an injunction restraining the defendant from manufacturing the alleged infringing product. As earlier stated in my opinion on the materials before this Court, the petitioner has failed to establish a seriously arguable case. I am also of the opinion that the balance of convenience is not in favour of granting an injunction as prayed by the petitioner. THE petitioners have not shown that they have put the patented product on the market. 24. THE petitioners have cited the decision in Continental Paper Bag Company v. Eastern Paper Bag Company, 210 U.S. 1122 to argue that merely because they had not used the patent did not mean that they could not ask for injunctive relief against infringement. On the other hand, the respondents has stated that they had sold Acetylene Generator with wire mesh filters for sometime. THE respondents relied upon a drawing referred to in their application for revocation. THE drawing was made on 24th September, 1988 and approved by the CCE, Nagpur on 6.9.89. THE drawing is of a stationary medium pressure dual hopper carbide-to-water type acetylene generator. THE respondents relied upon a drawing referred to in their application for revocation. THE drawing was made on 24th September, 1988 and approved by the CCE, Nagpur on 6.9.89. THE drawing is of a stationary medium pressure dual hopper carbide-to-water type acetylene generator. THE drawing shows a filter screen before the slurry drain valve. THE application for grant of the patent in question was made in the middle of 1988 and the advertisement was published on 28th September, 1991 after the respondents had prepared the drawing. THE patent was granted in September, 1992 and although it may relate back to the date of the application in theory, the fact remains that even when the patent was granted the respondents were already familiar with the concept of a wire mesh before a slurry drain in an acetylene generator for several years. THE status quo as on the date of this application or the filing of the suit by the petitioner would thus be the utilisation of the alleged invention of the petitioner by the respondents. There is another aspect of the matter and that is the question of damage. The petitioners have themselves quantified the loss and damage which would be suffered by them by reason of the defendants alleged infringement of the patent. The quantification has been made at Rs. 4 crores. According to the law generally applicable, a suit for perpetual injunction will not lie unless there exists no standard for ascertaining the actual damage caused or likely to be caused. This is not to say that a plaintiff cannot claim damages in lieu of or in addition to such injunction. But where the plaintiff himself assesses the amount, the Court can rely upon such statement at least at the interlocutory stage to hold that the injury, if any, to the plaintiff can be compensated by damages and that therefore there was sufficient ground for denying the grant of injunction to the plaintiff. 25. THEN there is the question of delay. The petitioners admittedly came to know of the alleged infringement on 11th April, 1994. 25. THEN there is the question of delay. The petitioners admittedly came to know of the alleged infringement on 11th April, 1994. The correspondence annexed to the petition itself shows that the petitioners were well aware at least then that the respondents were seeking to sell the alleged infringing apparatus to the Steel Authority of India Ltd. The petitioners knew that the respondents had submitted the drawings of the alleged infringing apparatus to the Steel Authority of India pursuant to a tender called by the Steel Authority of India in 1993 and that at least the finalisation of the grant of tender was on and could be concluded in favour of the respondents. The suit was filed and the interim application moved 5 months later for the purpose of granting a prohibitory injunction. The delay of 5 months is an unreasonable one and the failure of the petitioners to act promptly in the circumstances of the case operates against the grant of any interim relief as prayed by the petitioners. The view expressed in the Continental Paper Book Co. (supra) is that merely because a patent has not been used does not debar the patentee from obtaining an injunction against infringement. But the use of the patent is relevant not only on the question of its validity but also on the question of balance of convenience [See Ibrium Case (Supra) as well as Boots Pure Drug Co. (India) Ltd. v. May and Baker Ltd., 52 CWN 253 and 'Godrej' Soaps Ltd. v. Hindustan Lever Ltd. and Anr., 98 CWN 131 paras 29 and 37 (DB)]. 26. THEREFORE on the basis of balance of convenience also I am not satisfied that any temporary injunction should be granted pending final decision in the suit. The application is accordingly disposed of by directing the respondents to keep separate accounts of the sale of the acetylene generators of the kind specified utilising a wire mesh as set out in claim 3 of the patent pending disposal of the suit. 27. COST of this application will be costs in the cause. 28. The petitioner filed an appeal from the order of the Trial Judge. Industrial Gases Ltd. v. The Kamsup Industrial Gases Ltd. Civil Appellate Jurisdiction Appeal No. 312 of 1995 in Suit No. 290 of 1994 Umesh Chandra Banerjee and Ronojit Kumar Mitra, JJ. 27. COST of this application will be costs in the cause. 28. The petitioner filed an appeal from the order of the Trial Judge. Industrial Gases Ltd. v. The Kamsup Industrial Gases Ltd. Civil Appellate Jurisdiction Appeal No. 312 of 1995 in Suit No. 290 of 1994 Umesh Chandra Banerjee and Ronojit Kumar Mitra, JJ. Decided on : November 15, 1995 Umesh Chandra Banerjee, J. A patent monopoly is a privilege granted by the Patent Office to the invention of any new contrivance in manufacture so that the inventor alone shall be entitled to it during a limited period to make articles according to his own invention. To be the subject matter of a patent right, an article must be material and capable of being manufactured. An idea by itself cannot, however, be patented. The person applying for the patent must be the true and first inventor of it and the Patents Act has been engrafted in the Statute Book to encourage inventions and also to protect inventions. The grant of patent entitles the patentee to all the rights and privileges in the invention and in the event of there being any infringement, the patentee can seek the assistance of Courts to protect his rights by an order of injunction together with a claim for damages. Be it noted that the patent document carries with it a contemporary new technology and by reason of the protection as available under the Patents Act, there has been thus a steady statutory encouragement and development of modern technology - be it in the field of software or other areas -so as to meet the needs of a developing society and thereby giving rise to further scientific research and development for the benefit and enrichment of the present- day society. The Patent Office, therefore, has an important role to play in promoting scientific and technical progress and consequent economic development of the country. The inventions shall have to be encouraged by the Law Courts and due protection ought to be had, as otherwise the purpose of such inventions would be totally frustrated and the inventor would turn out to be a man dejected. The fundamental aim in practising the patent system is to protect and encourage fair competition in the field of technology so as to transform inventions or creations into real productive forces as quickly as possible. The fundamental aim in practising the patent system is to protect and encourage fair competition in the field of technology so as to transform inventions or creations into real productive forces as quickly as possible. Be it also noted that not only do people in the present contingent need to constantly improve their professional skills, but with the development of the situation even more qualified patent workers are required. All lawful rights and interests of patentees is the nucleous of the patent system and the country's market economy is dependent on a successful working of this particular patent system (see in this context WIPO Publication No. 4358; January to March, 1995, page 15). 29. HAVING discussed the basic feature of the patent Law let us now deal with the issue as to the grant of interlocutory injunction. The equitable remedy by way of an injunction, whether mandatory or interlocutory in nature, is discretionary and is never granted as a matter of course. Lord Diplock's speech in the American Cyanamid case (American Cyanamid Co. v. Ethicon Ltd., 1975 (1) All E.R. 504), lays down certain guidelines for the grant of interlocutory injunctions. The guidelines provide that the plaintiff must satisfy the Court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff wins the action, damages at Common law would be inadequate compensation for the plaintiff's loss. Once satisfied of these facts, the Court will then consider whether the balance of convenience lies in favour of granting the injunction or not, i.e. whether justice would be best sub-served by an order of injunction. The great value of Cyanamid case lies in its treatment of interlocutory injunction as an aid to the concept of justice in any litigation. The demands of justice, when it comes to the question of whether or not to maintain the status quo until the trial, cannot be governed by rules - what should be borne in mind in addition to the tests phrased by Lord Diplock is his reminder that at this stage the Court does not and cannot judge the merits of the parties, respective cases and that no decision can be taken in a state of uncertainty about the parties, rights. It would seem to follow from this that if there is any uncertainty, the Court should be doubly reluctant to issue an injunction, the effect of which is to settle the parties, rights once for all. (In this context, see All E.R., Annual Review, 1984). 30. SIMILAR view has also been expressed by the House of Lords in the case of Wimbleby and Sons Ltd. v. National Union of Journalists, (1984) 1 All E.R. 751. It is therefore apparent that the question of damages as also the balance of convenience has not really been ignored or said to be of trifling value. American Cyanamid has not really as such made a departure from the age-old law as regards the grant of interlocutory injunction. 31. TURNING attention on to the state of Indian Law, be it noted that the Supreme Court in the decision of the United Commercial Bank v. Bank of India, AIR 1981 SC 1426 also laid down that even if there was a serious question to be tried, the balance of convenience ought to be considered in the matter of grant of injunction. This Court also in the case of Damodar Valley Corporation v. Haripada Das, AIR 1978 Cal 489 held that on being satisfied that there is a serious question to be tried, the Court ought also to consider the issue of balance of convenience and whether the plaintiff would be adequately compensated by an award of damages in the event of his success in the suit. 32. BE it recorded that Lord Diplock's speech itself in no uncertain terms laid down that the same tests as are required to be complied in the matter of grant of interim injunction in civil suits ought to be made applicable in the matter of grant of interlocutory injunction to a patent matter as well. It is on this backdrop of law as formulated by the English Courts as also by the Indian Courts as above, that the instant appeal has to be examined as regards the tenability of the grounds of appeal against the order of the learned single Judge refusing to accede to the prayer for interim injunction. It is on this backdrop of law as formulated by the English Courts as also by the Indian Courts as above, that the instant appeal has to be examined as regards the tenability of the grounds of appeal against the order of the learned single Judge refusing to accede to the prayer for interim injunction. Before, however, proceeding further with this matter one redeeming feature ought to be noted, viz., observation of the learned Trial Judge to the effect that the petitioners being the appellants herein for the purposes of this application pressed their case before the learned Trial Judge only in respect of a part of the patent being No. 169335 and it is thus not necessary, the learned Trial Judge observed, to consider the details regarding the other two patents. The appellants, however, strongly contended that this observation of the learned Trial Judge cannot be said to be correct since the appellant prayed for an order of injunction before the learned Trial Judge in regard to the protection of its patent being No. 169335 in its entirity. The respondents, however, disputed such a stand by reason whereof the notes of submission, as submitted before the learned Trial Judge, were taken recourse to by the appellant. This dispute, however, ought not to detain the Appellate court for long since the law is well- settled on this count and without much dilation reference may be made to the decision of the Supreme Court in the case of State of Maharashtra v. Ramdas Shriniwas Nayak and Another, AIR 1982 SC 1249 , wherein the Supreme Court in paragraph 4 of the report observed as follows: "4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us, intervened and protested that he never made any such concession and invites us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us, judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt, Judges cannot be dragged into the arena. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us, judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt, Judges cannot be dragged into the arena. 'Judgments cannot be treated as mere counters in the game of litigation'. (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 138). We are bound to accept the statement of the Judges recorded in their Judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record, to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice, but, he may not call in question the very fact of making the concession as recorded in the judgment." 33. IN paragraph 7 of the report the Supreme Court further observed:- "7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." 34. IN paragraph 7 of the report the Supreme Court further observed:- "7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." 34. SUBSEQUENTLY the Supreme Court in Bhagvati Prasad v. Delhi State Mineral Development Corporation, (1990) 1 SCC 361 also in the same vein observed:- "It is now settled law that the statement of facts recorded by a court of quasi-judicial tribunal in its proceedings as regards the matters which transpired during the hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum..... It is not, therefore, open to the parties or the counsel to say that the proceedings recorded by the Tribunal are incorrect." With this state of law in this regard, we therefore cannot lend our concurrence to the appellants contention in regard to the recording of an observation of the learned Trial Judge as noted above to the effect that a part of Patent No. 169335 was pressed and not the patent in its entirety. 35. THE factual score has already been recorded in details by the learned Trial Judge and as such we refrain ourselves from longish narration of facts excepting, however, when it is otherwise required or essential in the matter of disposal of this appeal. 36. AN interlocutory application was filed by the appellant by reason of an alleged infringement of the petitioners patents bearing Nos. 170231, 169632 and 169335. Admittedly, the appellant did not press the alleged infringement in regard to the other two patents bearing No. 169632 and 170231 but proceeded to deal with the matter only in regard to the patent bearing No. 169335. It is at this juncture, however, that we ought to remind ourselves as to the role of the Appellate Court in the matter of interference with the order of the learned Trial Judge, especially when the same arises out of the equitable remedy in the matter of grant of an injunction involving the discretion of the learned Trial Judge. It is at this juncture, however, that we ought to remind ourselves as to the role of the Appellate Court in the matter of interference with the order of the learned Trial Judge, especially when the same arises out of the equitable remedy in the matter of grant of an injunction involving the discretion of the learned Trial Judge. In Elan Digital Systems Ltd. v. Elan Computers Ltd., 1984 F.S.R. 373 Donaldson, M. R. stated in his speech before the House as follows:- "I think it should be said, and said with great volume and clarity, that this court does not exist to provide a second bite at each interim cherry in the sense that it is open to parties, having failed in front of the learned Judge, simply to start again and have a de novo hearing in the hope that they will succeed in front of the Court of Appeal. We are a court of appeal, and particularly in the field of interim injunctions it is primarily the Trial Judge who is appointed to decide whether or not an injunction should be granted. This is not of course to say that there is no right of appeal, but there is a heavy burden on the appellant to show that the learned Judge has erred in principle, and that in exercising his discretion there is either an error of principle or - which is the same thing in a different form - he exercised his discretion in a way which no reasonable Judge properly directing himself as to the relevant considerations could have exercised it". 37. IN England, the law is therefore well settled in regard to the intervention of the Appellate Court in the matter of grant of interim injunctions. Law in this country also does not, however, have any variation and the observation of Venkatachaliah, J. in the case of Wander Ltd. and Another v. Antox India (P) Ltd., 1991 Vol. 11, PTC 1 in paragraph 13 of the report is to be noted which needs as follows : "13. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 11, PTC 1 in paragraph 13 of the report is to be noted which needs as follows : "13. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. IN such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not re-assess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner, the fact that the appellate Court would have taken a different view may not justify interference with the Trial court's exercise of discretion. After referring to those principles, Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph, 1960 (3) LCR 713, said: " These principles are well established, but as has been observed by Viscount Simon in Charles Csention and Co. v. Johnston, the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle". 38. IT is on this backdrop of law as formulated by the English Courts and the Supreme Court that the instant appeal has to be examined and considered and we should at this juncture advert ourselves to the relevant contextual facts required to be dealt with for the purpose of this appeal. 38. IT is on this backdrop of law as formulated by the English Courts and the Supreme Court that the instant appeal has to be examined and considered and we should at this juncture advert ourselves to the relevant contextual facts required to be dealt with for the purpose of this appeal. The records depict that the application in respect of Patent No. 169335 was made on 28th June, 1988 and the patent was granted and sealed on 4th September, 1992. The records depict that the application in respect of Patent No. 169335 was made on 28th June, 1988 and the patent was granted and sealed on 4th September, 1992. The application for patent contained a complete specification and in this specification the following has been recorded by the appellant herein:- "With a view to overcoming the foregoing draw-backs the present invention provides an improved carbide-to-water type apparatus for generating acetylene by the interaction between calcium carbide and water which comprises in combination - a) a generator shell equipped with agitators or churners for intimate mixing of calcium carbide and water; b) means for feeding calcium carbide to water maintained at a pre-determined level inside the generator shell; c) means for controlling pressure and temperature within generator vessel so as to achieve non-elevation of temperature and avoidance of excess pressure build-up; d) means for controlling level of water inside the generator; e) means for drawing out acetylene from the generator; f) means for preventing lumps and/or unreacted carbides from going out through slurry drain valves and g) means for removal of lime sludge from the generator shell." The specification further provided:- "The apparatus of the present invention will now be more particularly described and illustrated with the help of the accompanying drawings wherein - (1) is the acetylene generator, (2) is the carbide hopper, (3) is the screw feeder for feeding calcium carbide to water inside the generator vessel, (4) is the agitator, (5) is the residue drain valve, (6) is the flash-back arrestor, (7) is the safety valve, (8) is the gas outlet, (9) is flame-proof motor for screw feeder, (10) is the flame proof motor for agitator, (11) is the pressure indicator, (12) is temperature indicator, (13) represents the control switch, (14) is the water meter, (15) is the water inlet valve, (16) is the level controller, (17) is the access hole, (18) is the mounting for the generator, and (19) is the screen or sieve tray for holding back lumps or granular materials so that they may not clog the residue drain valve." Admittedly, so far as the combinations are concerned, as noted above, (a) to (e) and (g) are said to be no invention and the same are in use by other manufacturers. The uniqueness of the invention is said to contain in combination (f) read with (a) to (e) and (g). The uniqueness of the invention is said to contain in combination (f) read with (a) to (e) and (g). Similar is the position in regard to item Nos. 1 to 18 as above and admittedly the same are in use and in vogue and are in consonance with the ISI Specification and the invention is said to be contained in item No. 19 which is supposed to be a screen of sieve tray for holding back lumps or granular materials so that they may not clog the residue drain valve. It is the appellants' definite contention that the entire apparatus, being carbide-to-water type apparatus for generating gases like acetylene, with the combination of paragraph (f) or item No. 19 as above is an invention by reason of which the patent has been granted by the Patent Office and it is this patent which ought to be protected - otherwise the rightful inventor would lose his rights as a patent-holder and this will render the statute to be a mere mockery. 39. THE respondent on the other hand, however, contended that there is nothing new as such in the apparatus and as a matter of fact I.S.I. specification does contemplate a provision for filtration which has been translated into a workshop improvement by providing a sieve to avoid clogging at the mouth of the valve. As a matter of fact, the respondent did not, however, feel shy even to contend that the provision for sieve cannot but be described to be a pilferage, and placed strong reliance on the ISI specification as also on the drawings of one of the manufacturers of carbide-to-water type apparatus for manufacturing gaseous products. 40. THE issue, therefore, arises as to whether in the contextual facts of the case the introduction of a sieve or a strainer can be said to be an invention or a mere workshop improvement, as has been contended by the respondent. In the event of there being only an improvement of an existing machinery, the question of declaring it to be an invention requiring protection under the law does not and cannot arise. We are, however, not in a position to lend any concurrence to the submission of Mr. In the event of there being only an improvement of an existing machinery, the question of declaring it to be an invention requiring protection under the law does not and cannot arise. We are, however, not in a position to lend any concurrence to the submission of Mr. Sen appearing for the respondents, since the stage therefore has not come as yet, but we are only concerned at this stage with the tenability of the order of the learned Trial Judge refusing to grant an interlocutory injunction in the matter itself. It would thus be convenient to note the observations of the learned Trial Judge at this juncture:- "There are certain broad principles in the background of which the facts of this case will have to be considered. THE first is that a patent is granted only in respect of an invention (vide Sections 6 and 7 of the Act). THE second principle is that in a suit for infringement of a patent every ground on which the patent may be revoked is available as a ground of defence (vide Section 107). Keeping these principles in mind, in my opinion on the basis of materials at this stage no interim order can be granted on this application as prayed. Prima facie it appears that what the petitioner is claiming to protect is not an invention at all but part of one. At the hearing the petitioner has abandoned its case in respect of the two other patents and pressed its case only in respect of a part of the invention under Patent No. 169335. THE petitioner's application for the patent was in respect of an improved apparatus for generating acetylene. All applications for grant of patent are required to be accompanied by a provisional or a complete specification. A specification describes the invention and its operation or use and the method by which it is to be performed. A specification includes a claim of claims defining the scope of the invention for which protection is claimed (vide Section 10 (c). THE claim or claims relate to a single invention. A specification describes the invention and its operation or use and the method by which it is to be performed. A specification includes a claim of claims defining the scope of the invention for which protection is claimed (vide Section 10 (c). THE claim or claims relate to a single invention. THE invention in this case is the entire apparatus which has expressly been stated in the specification to be comprised in a combination of seven features in Claim I. THE subject matter of the present application therefore is one part of the apparatus, namely, the means for preventing lumps from passing out through the slurry drain valve. THE petitioner's case has not been pressed in respect of the several other components of the apparatus. In other words, of the 6 claims contained in the complete specifications referred to in an earlier paragraph of this judgment, the petitioner has restricted the claim to one viz. Claim 3 with reference to part of the apparatus in clauses (f) and (g) of the first claim. Now the patent was granted for the whole apparatus. THE question is whether the rights available to the petitioner as patent holder of the composite structure/process can be claimed in respect of a part and if it can be so claimed, whether the part is an invention within the meaning of the Act." The learned Judge further observed:- "The actual article on the basis of which the petitioner has claimed infringement is a wire mesh or sieve. The Court can take judicial notice of the fact that a wire mesh or sieve is an article in common use for the purpose of filtration. By itself it would not be patentable under Section 3 and particularly Section 3(d) of the Act. It is no doubt a useful object but it cannot be said to be 'new' within the meaning of Section 2 of the Act. The argument of the respondents that the use of the wire mesh as a filter in an acetylene generator is also not a new use of a known object appears at this stage to be correct. It is no doubt a useful object but it cannot be said to be 'new' within the meaning of Section 2 of the Act. The argument of the respondents that the use of the wire mesh as a filter in an acetylene generator is also not a new use of a known object appears at this stage to be correct. In the specifications prescribed by the Indian Standards Institution for acetylene generator, medium pressure, stationary, of carbide-to-water type, it is prescribed that in every such generator suitable means for draining water seals likely to become thickened by the deposit of residue must be provided (5.6 of the specification). In specification 12 of the idea of usage of filters in a generator is envisaged. In specification 17.6 there is a requirement that the gas outlet 'shall be in a way that their effect cannot be impaired or destroyed by humidity, lime, choking or clogging'. Given these essential requirements, it is doubtful that the use of the wire mesh before an outlet/drain can be said to be an inventive step." 41. BE it noted that the learned Single Judge placed strong reliance on a decision of another learned Single Judge of the Bombay High Court in the case of Press Metal Corporation Ltd. v. Noshil Sorabji Pochkhanawalla and Another, AIR 1983 Bombay 144. For convenience's sake, the observations of the learned Single Judge of the Bombay High Court in paragraph 34 of the report ought to be noted. The learned Single Judge observed:- "34. Under the Patents Act, an invention to be patentable must be a new and useful method or manner of manufacture. It involves two separate conditions, viz. is it a method or manner of manufacture, and secondly, is it new and useful. In order to entitle an inventor to a grant of a patent, both these conditions must be present. Manufacture in its ordinary parlance generally conveys the idea of making tangible goods by hand or by machine. If the words "new and useful manner of manufacture" were limited to the production of new articles without reference to the process of manufacture involving patent and improved method, the inducement which law intended to give to the inventor would be encompassed within very narrow rules. The word 'manufacture' would in my opinion, include improvements in manufacture and changes in the method by which an article is manufactured. The word 'manufacture' would in my opinion, include improvements in manufacture and changes in the method by which an article is manufactured. The word 'manufacture' in my opinion, would also extend to a new process to be carried on by known implements. 'Manufacture' is a term which is difficult to define. An attempt was made at defining the term 'manufacture' by Abbott, c. in the following terms : "Something of a corporeal and substantial nature, something that can be made by man from the matters subjected to his art and skill, or at the least, of some new mode of employing practically his art and skill is requisite to satisfy this word. (See Terrell on the Law of Patents, para 35, page 12)." 42. THE observations of the learned Single Judge of the Bombay High Court and the law as laid down in that decision, in our view, cannot be decried in any way whatsoever and we record our concurrence with the view expressed by the learned Single Judge of the Bombay High Court that an invention to be patented must be a new and useful method and manner of manufacture. Two separate conditions as laid down by the learned Single Judge in the decision noted above, viz., method of manufacture and the requirement of the article or apparatus being new and useful - both these conditions must be present in the matter of obtaining the grant of a patent under the Patents Act. Be it also noted that the learned Trial Judge has dealt with the two English decisions as cited by Mr. Chakraborty in the case of American Cyanamid (supra) and Hoffmann-La-Roche and Co. v. D.D.S.A. Pharmaceuticals Ltd., (1965) RPC 503, which were exhaustively dealt with by the learned Trial Judge and we do not see any reason to express a different opinion in the contextual facts of the matter under consideration and we record our concurrence with the observations of the learned Trial Judge for the purpose of avoiding prolixity. As regards the ground of delay, we do not, however, see any reason to refuse the grant of injunction in the matter, if it is otherwise tenable, on the ground of delay only. The delay involved in the matter cannot be said to be that long a delay so as to defeat the equity if the grant of an injunction is necessary. 43. The delay involved in the matter cannot be said to be that long a delay so as to defeat the equity if the grant of an injunction is necessary. 43. AS regards the issue for damages and the quantification thereof, we express no opinion in regard thereto as the same ought to be decided at the time of final adjudication of the disputes between the parties and the learned Trial Judge also has not expressed any opinion as such in regard to the issue except recording that the injury, if any, to the plaintiff can be compensated by damages, whether the plaintiff himself assesses it or the Court comes to some other definite conclusion in regard thereto. 44. THE learned Trial Judge upon consideration of the facts of the matter and submissions of the respective counsel appearing for the parties, has used her discretion in the matter. An equitable remedy by way of a grant of an injunction being a discretionary order and since the discretion used by the learned Trial Judge cannot be termed to be perverse, intervention of the Appellate Court is wholly unwarranted at this stage of the proceeding. We do not see any perversity in the order as passed by the learned Trial Judge and relying upon the observations of Venkatachaliah, J. in Wander Ltd. and Anr v. Antox India (P) Ltd. (supra) we also record that the Appellate Court ought not to re-assess the material and seek to reach a conclusion different from the one reached by the learned Trial Judge if the conclusion reached by the Trial Court was reasonably possible on the material averment. THE Appellate Court will not be justified in interfering with the exercise of discretion under appeal solely on the fact that if it had considered the matter at the trial stage it would have come to a different conclusion. THE discretion has been exercised by the learned Trial Judge reasonably and in a judicious manner and that puts an end to the question as to whether the order under appeal is tenable or not. In that view of the matter, this appeal fails and is dismissed. No order as to costs. THE discretion has been exercised by the learned Trial Judge reasonably and in a judicious manner and that puts an end to the question as to whether the order under appeal is tenable or not. In that view of the matter, this appeal fails and is dismissed. No order as to costs. Be it recorded that the observations made herein shall not in any way effect the hearing of the pending application before the learned Trial Judge in regard to the revocation of grant of patent or at the time of final adjudication of the suit and the learned Trial Judge would be at liberty to deal with the matter on its merits and in such manner as the learned Judge may deem it expedient.