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2009 DIGILAW 2703 (MAD)

Power Engineers v. Electronica Machine Tools

2009-07-27

V.PERIYA KARUPPIAH

body2009
JUDGMENT : V. Periya Karuppiah, J. 1. Petitions praying that in these circumstances stated therein and in the respective affidavits filed therewith the High Court will be pleased to: (i) to vacate the injunction granted in CMP No. 1/2009 in A.S. No. 1001/2008 on 30-1-3009 (in MP. 2/2009), and (ii) to appoint an independent scientific advisor to inquire into and report to the effect whether the product seized from this Petitioner/1st - Defendant and the inventions for which Patents 188585 and 190675 are granted are one and the same or not (in MP. 3/2009) respectively pending- AS. No. 1001 of 2008. Order: These petitions coming on for orders upon perusing the petitions and the respective affidavits filed in support thereof and upon hearing the arguments of M/s. U. Kasipandian, Advocate for the Petitioner in both the petitions and of Mr. S.P. Chockalingan, Advocate on behalf of the 1st Respondent in both the petitions the court made the following order: M.P. No. 2 has been filed lay the Petitioner/D1 seeking to vacate the injunction granted by this Court in M.P. No. 1 of 2009 in A.S. No. 1001 of 2008 on 08.06.2009. 2. M.P. No. 3 of 2009 has been filed by the Petitioner/D1 seeking for the appointment of an independent scientific Adviser to inquire into the materials involved in this case as mentioned in the prayer and to file a report into the Court as to whether the products seized from the Petitioner/D1 and the inventions, for which Patent Nos. 188585 and 190675 obtained, are one and the same or not. 3. Heard Mr. U. Kasipandian, Learned Counsel for the Petitioner and Mr. S.P. Chockalingam Learned Counsel appearing for the first Respondent. 4. The Petitioner herein is the first Defendant before the lower Court. According to the submissions made by both sides, the alleged infringement of the patents belonging to the parties are based on physical science and that the inventions registered in favour of the 1st Respondent/Plaintiff are to be compared with the products seized from the Petitioner/D1 with regard to their patents and such comparison should have been done by the Court with the help of a scientific Adviser as contemplated under Section 115 of the Patents Act. The products involved are to be scientifically approached, analyzed and found out with the assistance of the Scientific Adviser for the purpose of coming to the conclusion as to the formulation of the opinion to be decided in a dispute under the Patents Act. Therefore, there cannot be any objection for the Respondent/Plaintiff for such appointment of Scientific Adviser. 5. The Petitioner/D1 and the first Respondent/Plaintiff have submitted list of panel of scientific advisers to be appointed in this regard. Rule 103 of the Patents Rules, 2003 would go to show that the Controller shall maintain a roll of Scientific Advisers for the purpose of Section 115. Therefore, the persons mentioned in the roll of such Scientific Advisers kept and revised annually by the Controller as defined under the Patents Rules, would be the competent persons to be nominated or appointed as Scientific Advisers, who are experts in electrical and electronic products for the petition mentioned purpose. 6. The persons mentioned in the list as submitted by the Learned Counsel for the 1st Respondent/Plaintiff are, no doubt, having knowledge over the subject in respect of the electronics and electrical products and inventions. However, they will be not attracted under Section 115(1) of the Patents Act. Therefore, they cannot be appointed as Scientific Adviser. 7. Therefore, the Scientific Advisers as found in Circular No. 7 of 2009 produced by the patitioner/D1 in Group-3 category shall be appointed as Scientific Advisers in this case. Accordingly, Mr. S. Punithavathi, Deputy Controller of P and D, is appointed as the Scientific Adviser for the petition mentioned purpose and she is entitled to utilize the services of her personnel under the team in order to gather particulars and to file a report into the Court within a span of 30 days from the date of receipt of copy of this order. Fee payable to the Scientific Adviser is governed under Section 115(2) of the Patents Act. Accordingly, M.P. No. 3 of 2009 is ordered. 8. However, the application to vacate the injunction viz., M.P. No. 2 of 2009 can be considered only after the receipt of the Scientific Adviser's opinion. Therefore, the said application has to be posted alongwith the appeal. Both the parties have given their consensus to have the appeal posted at an earlier point of time, during the first week of october-2009 for final hearing. Therefore, the said application has to be posted alongwith the appeal. Both the parties have given their consensus to have the appeal posted at an earlier point of time, during the first week of october-2009 for final hearing. Therefore, the Registry is directed to inform the Scientific Adviser within two weeks and the Scientific Adviser is also directed to file her report before this Court within 30 days from the date of receipt of copy of this order. The Scientific Adviser is entitled to have access with the seized products from the Petitioner/1st Defendant kept in the custody of the Court for comparison with the invention of the Respondent/Plaintiff. Registry is further directed to post the appeal during the first week of October-2009 alongwith M.P. 2 of 2009, after preparation of pleading set by getting lower Court records.