Judgment : Compendiously and concisely, the relevant facts which are absolutely necessary and germane for the disposal of these three applications would run thus: (a) The plaintiffs filed the suit seeking the following relief’s: For a permanent injunction restraining the defendants their agents, or any person claiming under the defendants from in any manner infringing the plaintiffs Patent No.230421 in India by manufacturing, importing, marketing, selling, distributing either by wholesale or retail or in any other manner dealing with products comprising of stainless steel vacuum bottles in violation of the plaintiffs Patent No.230421; and For a permanent injunction restraining the defendants their agents, or any person claiming under the defendants from in any manner infringing the plaintiffs design Nos.205153, 207081, 207085, 207083 in India by manufacturing, importing, marketing, selling, distributing either by wholesale or retail or in any other manner dealing with products comprising of stainless steel vacuum bottles in violation if the plaintiffs design nos. 205153, 207081, 207085, 207083; and To grant a permanent injunction restraining the defendants their agents, or any person claiming under the defendants from in any manner dealing with products comprising of stainless steel, vacuum bottles of the type identical or deceptively similar or having same colour scheme, getup and layout to the plaintiffs Patented and Design Protected products and thereby passing-off the defendants products as that of the plaintiffs Patented and Design Protected products; and For destruction of all the infringing products that may be ordered to be seized; and To award damages to the plaintiffs for an initial sum of Rs.10,00,000/- towards loss of sales and profits; and To render accounts with regard to the dealings of the defendants with respect to the infringing and pirated product is concerned to the plaintiffs and to make payments of all profits earned by the defendants by reason of the infringed trade being carried on by the defendants; and For costs. (b) The same plaintiffs filed the three applications seeking the following relief’s: A.No.650 of 2009 has been filed seeking an order of ad-interim injunction restraining the respondents/ defendants their agents, or any person claiming under the respondents/defendants from in any manner infringing the plaintiffs Patent No.230421 in India by manufacturing, importing, marketing, distributing either by wholesale or retail or in any other manner dealing with products comprising of stainless steel vacuum bottles in violation of the plaintiffs Paten No230421; A.No.651 of 2009 has been filed seeking an order of ad-interim injunction restraining the respondents/defendants their agents, or any person claiming under the respondents/defendants from in any manner infringing the plaintiffs design Nos.205153, 207081, 207085, 207083 in India by manufacturing, importing, marketing, distributing either by wholesale or retail or in any other manner dealing with products comprising of stainless steel vacuum bottles in violation of the plaintiffs design Nos.205153, 207081, 207085, 207083; A.No.652 of 2009 has been filed seeking an order of permanent injunction restraining the respondents/defendants their agents, or any person claiming under the respondents/defendants from in any manner dealing with products comprising of stainless steel vacuum bottles of the type identical or deceptively similar or having same colour scheme, getup and layout to the plaintiffs patented and Design Protected Products and thereby passing-off the Defendants products as that of the plaintiffs Patented and Design protects products. 2. Common counter has been filed in all these three applications by the respondents/defendants. The fact also remains that the defendants also filed counter claim in the suit. 3. The plaintiffs filed the suit mainly on the following contentions: (i) The plaintiffs obtained patent right over Robust Thermally Insulated Bottle (herein after referred to as RTIB), which according to them is their exclusive patent right and the defendants are infringing the same. (ii) For the first time, most probably in the world, the plaintiffs thought of bringing out an invention, namely RTIB and they got it patented also. The defendants imported one consignment from China comprised of eight thousand pieces, which are deceptively similar to that of the plaintiffs product and sold them out. (iii) The design adopted by the plaintiffs in manufacturing RTIB is virtually copied by the manufacturer concerned, in manufacturing the product which was sold by the defendants. Accordingly, the plaintiffs pray for injuncting the defendants from selling or manufacturing or importing the said patented RTIB. 4. (iii) The design adopted by the plaintiffs in manufacturing RTIB is virtually copied by the manufacturer concerned, in manufacturing the product which was sold by the defendants. Accordingly, the plaintiffs pray for injuncting the defendants from selling or manufacturing or importing the said patented RTIB. 4. Whereas, denying and refuting, impugning and challenging the claim of the plaintiffs, the defendants would put forth their contentions which could succinctly and precisely be set out thus: (i) Steel bottles were in vogue even before the alleged invention by the plaintiffs. Thermo flask mechanism has been in prevalence ever since 1907. Mere merger of both would not pave the way for any right accruing in favour of the plaintiffs to claim patent right. (ii) The patent right conferred by the grant in favour of the plaintiffs by the authority concerned is illegal and is liable to be set aside and to that effect, counter claim has also been filed. Merely because the authority concerned conferred the patent right in favour of the plaintiffs as claimed by them, there is no embargo for the defendants to challenge the same by way of counter claim and also resist these applications. (iii) If the interim injunction order granted as prayed by them is confirmed, then in India, no person other than the plaintiffs could manufacture thermally insulated bottle at all and there is no significance in the alleged invention and it is based on trite or common or garden principle. (iv) In the market, the products similar to that of the plaintiffs have been in prevalence and in such a case, the plaintiffs cannot claim exclusive right over it on the ground that they have got exclusive patent right or design right. Accordingly, the defendants pray for dismissal of the applications. 5. The points for consideration are as to: (1) whether the defendants could be prevented from selling, importing or manufacturing any product similar to that of RTIB over which the plaintiffs have got their patent right? 2. Whether the defendants could be prevented from using the same or similar design as adopted by the plaintiffs in manufacturing such RTIB? 3. Whether the defendants could be prevented from passing off the RTIB manufactured by the plaintiffs? These points are taken together for discussion, as they are inter-linked and inter-woven, inter-connected and entwined with one another. 6. 2. Whether the defendants could be prevented from using the same or similar design as adopted by the plaintiffs in manufacturing such RTIB? 3. Whether the defendants could be prevented from passing off the RTIB manufactured by the plaintiffs? These points are taken together for discussion, as they are inter-linked and inter-woven, inter-connected and entwined with one another. 6. The learned Senior Counsel for the plaintiffs, by inviting the attention of this Court to the various decisions of this Court as well the Honble Apex Court would develop his argument to the following effect: (i) The defendants cannot be heard to contend that merely because in the market, there were steel bottles available and there were thermo flasks available anterior to invention of RTIB by the plaintiffs, the claim of the plaintiffs should not be accepted. An harmonious and utility based combination of already existing mechanisms and scientific inventions, would certainly attract exclusive patent right. (ii) The very object of the Patents Act is to encourage invention. Once there is some significant improvement in the earlier invention, certainly that would attract a new patent right. A new technology cannot be discarded as though it is a run of the mill invention or it is no invention at all and if such a view is taken, that would discourage persons to invent new things globally. It is a recognised principle that whenever there is any significant improvement even slightly or minimally made by the inventor relating to the already existing invention, in usage, or in its utility, certainly the law is zealous over such invention in protecting it. Accordingly, in this case, anterior to the plaintiffs invention, none ventured to even think of this RTIB. (iii) The peculiar feature of RTIB is found set out in the typed set of papers and it is extracted hereunder for ready reference: "I claim that 1. This invention is a robust thermally insulated leak proof two-shell bottle for designed for hot and cold fluid storage for a long period (hrs.) 2. The bottle design has incorporated two-stopper arrangement for fluid and thermal sealing mechanism to facilitate reliable thermal performance. 3. The two-shell arrangement described in claim 1 consists of an outer stainless teel shelll and an inner stainless steel shell. Vacuum space between both the shells act as a thermal insulator. 4. The bottle design has incorporated two-stopper arrangement for fluid and thermal sealing mechanism to facilitate reliable thermal performance. 3. The two-shell arrangement described in claim 1 consists of an outer stainless teel shelll and an inner stainless steel shell. Vacuum space between both the shells act as a thermal insulator. 4. The surface of the inner insulating shell as described in claim 3 is made as smooth as possible. The bottle is designed incorporating with suitable features to augment durability. 5. As mentioned in claim 2 the thermally insulated bottle is provided with an inner stopper to resist the leak from inner cup. The outer stopper acts as a lock. Combination of two stoppers acts as heat and a leak proof arrangement. The two shells are joined at the inner stopper. 6. Aforementioned arrangement as described in claim 5 has resulted in a perfect thermal and fluid leak proof. This design arrangement facilitates the bottle to retain 96 degree Celsius hot fluid for a day. 7. Grooves are made in the bottom surface of the bottle. The cup like serrated portion in the bottom augments the strength of the bottle. As claimed in statement 4 the insulated bottle is designed to resist breakage due to impact and shock loading. 9. The bottle is compact and weightless." Placing reliance on the same as well as the sketch as found set out in page 26 of the typed set of papers, the learned Senior Counsel for the plaintiffs would develop his argument to the effect that the narrow neck of the RTIB with two stopper arrangement is significant and peculiar to the plaintiffs product and no one ever thought of it earlier. In the traditional Thermo flask, hot fluids if poured, it would retain its heat for a period not more than four hours, but in the plaintiffs RTIB, the hot fluid would retain its heat for atleast 18 hours and cold liquids will retain its coolness for 24 hours. (iv) The steel sheets invented by the plaintiffs are being used for the manufacture of the said bottle and the steel sheets are arranged in such a manner that there is a vacuum space created between the two metal walls of the bottle in such a scientific manner that it enables the heat or cold to be retained inside the bottle. The cork is having its own speciality and technology. The cork is having its own speciality and technology. There is double stopper arrangement and the thermal insulation is provided even around the narrow neck of the bottle. If the neck of the container is broad, it would not retain the heat or cold for a long time, but on the other hand, if the neck is narrower as invented by the plaintiffs, certainly, it enables to retain the inner atmosphere in the bottle for a long time. The bottle also is significantly lighter than the thermo flask and easily it could be carried and made use of. 7. As such, inviting the attention of this Court to the various portions of the paper set filed by them, the learned Senior Counsel for the plaintiffs would develop his argument that scientific invention of the plaintiffs has to be protected. He would also bring it to the knowledge of this Court by pointing out that much of a muchness could be seen between the said bottles manufactured by the plaintiffs and the bottles sold by the defendants by importing them from China. There is no scintilla or jot, shred or shard, molecular or miniscule extent of difference between the bottle manufactured by the plaintiffs and the bottle sold by the defendants in India. A common man would easily be carried away by such simulation resorted to by the defendants and even a man on the top of a clapham omnibus would be able to see that there is no distinction between the two. Any distinction which is sought to be put forth on the defendants side is one that of tweedledum and tweedledee or six of one and half a dozen of the other and it is not one between chalk and cheese. The defendants have got no locus standi to resist the applications and also the suit or file counter claim as they are persons not interested in the matter and even according to him, they are only sellers of the product. 8. Tour dhorizon of the learned counsel for the defendants would run thus: (i) The defendants cannot be termed as persons not interested in the matter as they imported the goods and sold and they are also intending to manufacture similar bottles which they sold. 8. Tour dhorizon of the learned counsel for the defendants would run thus: (i) The defendants cannot be termed as persons not interested in the matter as they imported the goods and sold and they are also intending to manufacture similar bottles which they sold. (ii) As per Section 64 of the Patents Act, the defendants have got the right to seek for revocation of the Patent right granted by the authority concerned in favour of the plaintiffs. (iii) The RTIB over which the plaintiffs are claiming exclusive patent right based on the grant of the Patent would not in any way prevent the defendants from importing similar products or manufacturing similar bottles, as the said RTIB cannot be termed as an invention at all within the meaning of Section 3 of the Patents Act. The definition as contained in Section 3(d) of the Patents Act would disentitle the plaintiffs from claiming exclusive right over RTIB. The steel bottles were manufactured long prior to the alleged invention by the plaintiffs and thermo flask mechanism was also invented and in use long prior to the alleged invention. There are catena of decisions that combination of two already existing mechanisms or inventions would not enable the one who claim to have invented it to assert exclusive patent right over such combination, which are obvious and axiomatic. (iv) In this case, the plaintiffs could not point out that the alleged invention is a new product or involved any employment of a new reactant. (v) The plaintiffs are not precise in their averments in the plaint as to which design of the plaintiffs has been violated by the defendants and even in respect of the design is concerned, similar steel bottles are used by almost all the traders who are engaged in selling fluids. (vi) There is nothing to indicate that the products sold by the defendants are deceptively similar to that of the plaintiffs product and there was no intention on the part of the defendants to pass off the goods of the plaintiffs. 9. The learned Senior Counsel for the plaintiffs would in all fairness submit that despite grant of patent by the authority concerned under the Patents Act, a third party has got the right to seek for revocation of the grant of patent by filing counter claim in a suit filed by the patent holder. 10. 9. The learned Senior Counsel for the plaintiffs would in all fairness submit that despite grant of patent by the authority concerned under the Patents Act, a third party has got the right to seek for revocation of the grant of patent by filing counter claim in a suit filed by the patent holder. 10. The next arises is as to whether so far this case is concerned the defendants have got the right to file the counter claim, for which I would like to observe that at the time of dealing with the main civil suit, along with the counter claim, this point can be decided finally. In dealing with these applications, this Court is not very much concerned with the locus standi of the defendants to resist the applications. 11. It is a common or garden principle that when the applicant seeks certain orders as against the respondent, the latter is entitled to put forth all objections and such a right to defend cannot be throttled at this stage. As such, relegating the decision on the point as to whether the defendants have got the right to get the patent revoked, to the trial stage, I would like to proceed to deal with the applications. 12. However, the learned counsel for the defendants by inviting the attention of this Court to Section 64 of the Patents Act would submit that persons like the defendants do have the right to seek for revocation. Incidentally, I would refer to the said Section also and a portion of the said Section is extracted hereunder: 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 be revoked on a petition of any person interested or of the Central Government by the Appellate Board or on a counter-claim in a suit for infringement of the patent by the High Court on any of the following grounds, that is to say - (a) that the invention, so far as claimed in any claim of the complete specification, was claimed in a valid claim of earlier priority date contained in the complete specification of another patent granted in India;" (emphasis supplied) 13. The learned counsel for the defendants also would develop his argument by pointing out that the definition Person Interested as contained in Section 2(1)(t) of the Patents Act is an inclusive definition and it does not exclude the defendants like the one before this Court from raising any plea so as to revoke the patent granted. As such ex facie and prima facie also, the learned counsel for the defendants is able to convince this Court that they have got the right to dispute the grant of patent by the authority concerned in favour of the plaintiffs. However, I would make it clear that the said issue shall be dealt with during trial and ultimately it would be decided finally. 14. At this juncture it is just and necessary to deal with the decisions cited on either side. 15. The learned Senior Counsel for the plaintiffs would cite the decision of the Division Bench of this Court reported in 2008(5) CTC 97 [Mariappan v. A.R.Safiullah and three others]. An excerpt from it would run thus: "60. ....... Therefore, an "inventive step" which is a necessary ingredient of invention in order to make an Applicant eligible for grant of patent under the Act, must be relating to an invention involving technical advance or having economic significance or both along with a necessary factor that such invention should make it not obvious to a person skilled in the art. Therefore, a patent must have characters of novelty, non-obviousness and enablement, out of which, enablement being the concept of putting the novelty into action and all the above said ingredients must consecutively be present to have a valid patent. Admittedly, in the case on hand, pre and post grant oppositions had been raised in respect of the patent granted to the applicant/plaintiff and under Section 43 of the Patents Act, 1970, it is open to a party who is opposing the patent to prove that there are no inventive steps in the invention of the patent and therefore, the patent granted need not be taken into consideration at least at the time of granting order of interim injunction." 16. Placing reliance on the above extract and for that matter the entire precedent, the learned Senior Counsel for the plaintiffs would advance and put forth his argument that the Division Bench of this Court clearly laid down the law to the effect, that even if there is any invention which emerged out of combination of two already existing mechanisms, still it could be termed as an invention within the meaning of the Patents Act. 17. By way of torpedoing the contention as put forth by the learned Senior Counsel for the plaintiffs, the learned counsel for the defendants would cite the following English decision: [1985] RPC 59 [Windsurfing International Inc. v. Tabur Marine (Great Britain) Ltd.], certain excerpts from it would run thus: "(pg.59) 20. In an action for infringement of the patent, the defendants counterclaimed for its revocation on the grounds that what was claimed lacked novelty over a prior user by C and was obvious in view either of the prior user or of a printed publication D. (pg.73) 45. We have not felt able to accept Mr.Pumfreys submissions. There are, we think, four steps which require to be taken in answering the jury question. The first is to identify the inventive concept embodied in the patent in suit. Thereafter, the court has to assume the mantle of the normally skilled but unimaginative addressee in the art at the priority date and to impute to him what was, at that date, common general knowledge in the art in question. The third steps is to identify what, if any, differences exist between the matter cited as being "known or used" and the alleged invention. Finally, the court has to ask itself whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the skilled man or whether they require any degree of invention. As regards the first step, we respectfully agree with the learned judge that the inventive concept of the patent is the free-sail concept. It is that which constitutes the essential difference between the patent in suit and other conventional vehicles propelled by sail. Going back, then, to the priority date, anyone familiar with sailing and sailing craft would then have known, as part of his general knowledge, the difference between square sail and Bermuda rigs and the disadvantages as regards manoeuvrability presented by the former. (pg.77) 5. Going back, then, to the priority date, anyone familiar with sailing and sailing craft would then have known, as part of his general knowledge, the difference between square sail and Bermuda rigs and the disadvantages as regards manoeuvrability presented by the former. (pg.77) 5. ......it would be wrong to enable the patentee to prevent a man from doing what he has lawfully done before the patent was granted. No doubt, the philosophy behind sub-paragraph (f) is different to this extent, that a patent is granted only for an invention and that which is obvious is not inventive, but it also must, we think, take into account the same concept as anticipation, namely that it would be wrong to prevent a man from doing something which is merely an obvious extension of what he has been doing or of what was known in the art before the priority date of the patent granted. ....." Placing reliance on the said decision, he would put forth his argument that a patent would be invalid by reason of obviousness and anticipation. No doubt, this is a larger issue which has to be decided only after entertaining evidence and ultimately while disposing of the suit. 18. The learned counsel for the defendants also cited the following decisions: (i) AIR 1982 SC 1444 [M/s Bishwanath Prasad Radhey Shyam v. M/s Hindustan Metal Industries], certain excerpts from it would run thus: "17. The object of Patent Law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own, use or sell the method or the product patented for a limited period, stimulates new inventions of commercial utility. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which, after the expiry of the fixed period of the monopoly, passes into the public domain. 18. The fundamental principle of Patent Law is that a patent is granted only for an invention which must be new and useful. That is to say, it must have novelty and utility. It is essential for the validity of a patent that it must be the inventors own discovery as opposed to mere verification of what was already known before the date of the patent. 21. That is to say, it must have novelty and utility. It is essential for the validity of a patent that it must be the inventors own discovery as opposed to mere verification of what was already known before the date of the patent. 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 or an "inventive step". To be patentable the improvement or the combination must produce a new result, or a 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. 33. It is noteworthy that 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. It is pertinent to note that this position, viz., the validity of a patent is not guaranteed by the grant, is now expressly provided in Section 13(4) of the Patents Act, 1970. In the light of this principle, Mr.Mehtas argument that there is a presumption in favour of the validity of the patent cannot be accepted. 44. As pointed out in Arnold v. Bradbury, (1871) 6 Ch A 706, the proper way to construe a specification is not to read the claims first and then see what the full description of the invention is but first to read the description of the invention, in order that the mind may be prepared for what it is, that the invention is to be claimed, for the patentee cannot claim more than he desires to patent. .... 51. .... 51. ....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 slights 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 or 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 know whether Purushotam 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. 60. In the result, the appeals are allowed, the judgment of the Appellate Bench is set aside and that of the trial Court restored. In the peculiar circumstances of the case, the parties are left to bear their own costs throughout." The aforesaid judgment of the Honble Apex Court would precisely be on the point that combination of old integers not involving any novelty cannot be taken as an invention attracting the right to get patented such invention. (ii) One other precedent of this Court reported in 2009 (3) CTC 178 [TVS Motor company Limited, Jayalakshmi Estates, No.8, Haddows Road, Chennai 600 006 v. Bajaj Auto Limited, Bomkbay-Pune Road, Akurdi, Pune 411 035], is also cited by the learned counsel for the defendants. Certain excerpts from it would run thus: "69. (ii) One other precedent of this Court reported in 2009 (3) CTC 178 [TVS Motor company Limited, Jayalakshmi Estates, No.8, Haddows Road, Chennai 600 006 v. Bajaj Auto Limited, Bomkbay-Pune Road, Akurdi, Pune 411 035], is also cited by the learned counsel for the defendants. Certain excerpts from it would run thus: "69. When we refer to the various decisions relied upon by the learned Senior Counsel for the respective parties the following principles emerge viz.,- (i) The validity of a patent can be challenged in a Suit on various grounds of revocation as set out under Sections 64 and 107 of the Patents Act. (ii) For the grant of interim injunction in a patent matter, the prima facie validity of the patent should be shown and also the prima facie infringement should be proved apart from the availability of balance of convenience and irreparable loss. (iii) If the patent is a new one, mere challenge at the Bar would be quite sufficient for the refusal of an interim injunction as compared to a fairly old patent. (iv) Even in IPR cases, apart from prima facie case, balance of convenience and irreparable injury, the mere registration of the patent alone would not be sufficient and the Court must look at the whole case i.e. the strength of the case of the plaintiff and the strength of the defendant. (v) Irrespective of the examination and investigation made under Sections 12 and 13 of the Patents Act, no presumption can be drawn as to the validity of the patent and whether the application for revocation of patent is pending and when serious controversy exist as regards the existence of an invention based on prior art, the Court should be slow in granting the injunction. ...... (x) While analysing a claimed invention, it is relevant to examine as to whether the invention requires independent thought, ingenuity and skill, producing in a distinctive form a more efficient result and there by converting a comparatively defective apparatus into a efficient and useful one which, taken a whole, is novel. 76. ...... (x) While analysing a claimed invention, it is relevant to examine as to whether the invention requires independent thought, ingenuity and skill, producing in a distinctive form a more efficient result and there by converting a comparatively defective apparatus into a efficient and useful one which, taken a whole, is novel. 76. When we apply the law laid down in the various decisions cited before us, as far as the validity of the patent is concerned, it is by now well settled that the validity of the patent can always be challenged in the High Court on various grounds for revocation as provided under Section 64 or the ground on which he allegation of infringement is to be established as provided under Section 104 and or could be defended under Section 107 of the Patents Act. 79. Further applying the well laid down principle that when application for revocation of a patent of the Respondent is pending before the Appellate Tribunal and when such an application has been preferred on the ground of existence of a prior art, obviousness and other formidable grounds as provided under Section 64 of the Patents Act, the Court should not grant injunction in such cases. .... 81. As far as the preposition that the patent specifications are intended to be read by persons skilled in the relevant art, we have found that there is atleast one article by an enlightened student of Intellectual Property Law of I.I.T.Kharagpur, which we have referred in detail in the earlier paragraphs, where the Author was able to demarcate the distinctive features of the patented product of the Respondent as well as that of the Appellant and by making a reference to the desriptive distinction in the respective specifications of the Appellant as well as the Respondent, we are quite convinced that even going by the independent opinion of a person in the concerned field of art there is no scope to restrain the Appellant by way of grant of interim injunction. In the various other materials relied upon, we do not find a comparative analysis made with particular reference to the respective patents of the parties. 82. As far as the application of the concept of pith and marrow of the claim, what is stated is that novel feature which is claimed to be essential would constitute the pith and marrow. In the various other materials relied upon, we do not find a comparative analysis made with particular reference to the respective patents of the parties. 82. As far as the application of the concept of pith and marrow of the claim, what is stated is that novel feature which is claimed to be essential would constitute the pith and marrow. The novel feature in the invention of the Respondent based on Patent No.195904 dated 16.07.2002, varies in very many respects in the novel feature of the Appellants product based on Patent No.196636 dated 25.05.2000. While the acclaimed novel feature of the Respondents product is twin plug operation resulting in improved internal combustion, the acclaimed novel feature in the Appellants product is in the operation of two intake valves with one exhaust valve providing a combination of swirl and tumble operation of lean and rich air fuel mixture in its internal combustion process of course with the aid of twin plugs. If the pith and marrow of the Respondent and the Appellant are distinctively identifiable there is absolutely no scope for grant of injunction as has been done by the learned Single Judge. The said judgment highlights that for constituting invention attracting patent right, there should be involvement of independent thought, ingenuity and skill constituting novelty from the earlier existing inventions. (iii) The decision of the Himachal Pradesh High Court reported in 2006 (33) PTC 339 (HP) [Dhanpat Seth and others v. Nil Kamal Plasti Crates Ltd.] also has been cied on the defendants side. Certain excerpts from it would run thus: "15. The argument advanced by the learned counsel for the plaintiff/ petitioners cannot be accepted, because per Section 107(1) of the Patents Act, in any suit for infringement of patent, every ground, on which it may be revoked, under Section 64, is available as a ground for defence. It is one of the grounds for revocation of a patent, under Section 64 of the Act, that the patented product is not an invention, which in the present case means a new product. ...." The said decision is on the point that patented product should be a new product or process involving an inventive step and capable of industrial application as per Section 2(j) of the Patents Act. ...." The said decision is on the point that patented product should be a new product or process involving an inventive step and capable of industrial application as per Section 2(j) of the Patents Act. (iv) The decision of the Delhi High Court reported in AIR 2000 DELHI 23 [M/s Standipack Pvt. Ltd. And another v. M/s Oswal Trading Co. Ltd and etc.], has also been relied on by the defendants. Certain excerpts from it would run thus: "10. Section 3(d) of the Patents Act provides that 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, could not fall within the category of an invention. Section 3(f) of the Act provides that mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way, would not constitute an invention for the purposes of the Patents Act. 11. ..... It may, however, be noted that thickness of the plastic film/layer depends upon the tolerance of the contents of the pouch. Thus the same is merely an arrangement and re-arrangement of the mixture of material and cannot be termed as a novel concept and does not have any novelty. Such arrangement and re-arrangement of mixture of the material cannot become an invention, for it is only an improvement by adding microns as per the strength of the layers. Thus prima facie the invention claimed by the plaintiff in respect of the thickness of the layers of the aforesaid pouch cannot be called an invention as envisaged within the definition clause of the Patents Act. Besides the documentary evidence placed on record prima facie indicates that the claim made by the plaintiff is already known in the trade and the patent was pre-published. 12. ......The said submission cannot be accepted in view of the fact that the examiner who examined the patent accepted the patent on the basis of the declaration made by the plaintiff and the examiner had no knowledge at that point of time that the pouches were already available in the market. The application of the plaintiff was examined on the basis of the declaration made by the plaintiff and as per the record available. The application of the plaintiff was examined on the basis of the declaration made by the plaintiff and as per the record available. On consideration of the documentary evidence read with the aforesaid statutory provisions it is prima facie held that the said contention of the plaintiff is not tenable. 15. It has been held in a series of judgments that no presumption of validity attaches to a patent granted by the Controller under the Act notwithstanding examination and investigation made under Sections 12 and 13. 16. ....There are cases where it is held that when an application is filed seeking for revocation of the patent and questioning the validity of the patent the Court should not grant an injunction. It is settled law that in an action for infringement of a patent an injunction would not be granted where the validity of the patent itself has been questioned and a revocation petition has been filed. The said precedent is on the point that a mere mixture of materials or re-arrangement of mixture of materials would not constitute novel concept attracting patent right. 19. The term patent as defined under clause (m) of Sub Section (1) of Section 2 of the Patents Act would unambiguously and unequivocally contemplates that the patent could be granted only in respect of an invention, which is found described under Clause (j) of Sub Section (1) of Section 2 of the Act to the effect that there should be a new product or process involving an inventive or capable of industrial application. Similarly, the terms inventive step and new invention are also found described in Clauses (ja) and (l) of Sub Section (1) of Section 2 of the Act. A cumulative effect of those definitions would stress upon the fact that mere mixture of two earlier inventions by itself would not constitute a new invention attracting patent. 20. At present for the disposal of these applications, this Court has to see whether pending disposal of the suit, the balance of convenience is in favour of the plaintiffs or the defendants. 20. At present for the disposal of these applications, this Court has to see whether pending disposal of the suit, the balance of convenience is in favour of the plaintiffs or the defendants. The learned Senior Counsel for the plaintiffs would vociferously canvass the case of the plaintiffs that if the defendants are not injuncted from manufacturing similar RTIB as that of the plaintiffs, then there will be spate or deluge of manufacturers who would enter into the field and start manufacturing RTIB bottle and it would adversely affect the right of the plaintiffs. 21. On the other hand, the learned counsel for the defendants would point out that if the prayer of the plaintiffs is granted without any reservations, then except the plaintiffs none in India or even for that matter in the rest of the world manufacture any bottle having thermo mechanism. The learned counsel for the defendants would reiterate that mere manufacturing of the steel bottle can never be prevented by anyone as it has been in the field from time immemorial and thermo flasks have been sold ever since 1907 and in such a case, if the defendants are prevented from selling or manufacturing metal bottle having thermal mechanism, certainly that would infringe the right of the defendants to conduct business. 22. Ex facie and prima facie, I could see considerable force in the submission made by the learned counsel for the defendants, for the simple reason that the bottle over which the plaintiffs have got patent right mainly comprised of two mechanisms, viz., one metal bottle and another one is thermal mechanism. The gist and kernel of the plea of the defendants is that mere rehash would not constitute invention within the definition contemplated in the Patents Act. 23. However, the learned Senior Counsel for the plaintiffs inviting the attention of this Court to the typed set of papers has pointed out that there are unique features attached to the plaintiffs product, which others should not be allowed to emulate or simulate. He would also point out that the narrow neck of the bottle and the facts that there is thermal mechanism around the neck of the bottle and that there is seamless inner surface are notable features, which others should not emulate. He would also point out that the narrow neck of the bottle and the facts that there is thermal mechanism around the neck of the bottle and that there is seamless inner surface are notable features, which others should not emulate. He would also submit that in the traditional flask, at the joints, so to say at the bottom, there will be seams and that pave the way for algae formation or bacterial formation and they emanate bad smell; whereas, without such defects the plaintiffs devised the bottle and it is odourless for ever. 24. However, the learned counsel for the defendants would submit convincingly that those are all not virtually patented and only at the time of argument the learned Senior Counsel for the plaintiffs has canvassed those points; a plain reading of the paper book furnished by the plaintiffs would not reveal that such features have been got patented. As such, in the absence of any features having been got patented by the plaintiffs, now for the purpose of this suit, the plaintiffs cannot press into service those features as though they were patented and that the defendants should not emulate or simulate it. 25. At this juncture, I am of the considered view that necessarily during trial, the alleged special features attributed by the plaintiffs to their product should be gone into and scientific opinion also is required on that. It is also a fact that in the additional typed set of papers, the plaintiffs at page 23 onwards pointed out certain scientific findings to show that their bottle has got some unique features which no thermo flask can ever provide. Whereas, the learned counsel for the defendants by inviting the attention of this Court to page Nos.41 and 44 of the typed set of papers would develop his argument that the other manufacturers also have brought forth metal bottles having thermal mechanism and they also yield very good results, which are in no way significantly lower to that of the plaintiffs claim. 26. 26. The learned counsel for the defendants would also stress upon the fact that the results as found set out at pages 41 and 44 of his typed set of papers are not relating to mere metal bottles, but also relating to original thermo flasks and as such, he would develop his argument that the plaintiffs cannot claim that their RTIB is having thermal mechanism which is superior to any other product already in existence in the market. 27. Whereas, the learned counsel for the plaintiffs would submit that the results as found set out in the paper book of the defendants are all relating to the products by the infringers of the plaintiffs product and no reliance could be placed on that. 28. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that certainly there are serious issues to be decided in this case and in view of the same, I would like not to injunct the defendants from adopting the thermal mechanism in metal bottles, and if it is done so, certainly during the pendency of the suit, the defendants would be prejudiced. On the other hand, the plaintiffs would not be very much prejudiced, as they are having independent right to manufacture their product. Preventing one individual from manufacturing during the pendency of the suit is a serious matter and that would have far reaching consequences, on the other hand, if both the plaintiffs and the defendants are allowed to proceed in their own line during the pendency of the suit, that would not cause much hardship to the plaintiffs, and in this view of the matter, I do not incline to grant injunction as against the defendants that they shall not sell or manufacture metal bottle with thermal mechanism. While holding so, this Court should safeguard the right of the plaintiffs by mandating that the defendants should not pass off or simulate or manufacture deceptively similar product of the plaintiffs. The trite proposition is that each one should rely upon their own intellectuality or fortune for progressing in the business. The defendants cannot try to reap the fruit of the intellectual exertion of the plaintiffs. 29. The trite proposition is that each one should rely upon their own intellectuality or fortune for progressing in the business. The defendants cannot try to reap the fruit of the intellectual exertion of the plaintiffs. 29. The learned Senior Counsel for the plaintiffs by showing before me the plaintiffs bottle as well as the deceptively similar bottle sold by the defendants would develop his argument that the defendants bottle is nothing, but the spit of or the spitting image of the plaintiffs bottle. I agree with the submission made by the learned Senior Counsel for the plaintiffs, as even a mere glance at them would enable a man even on the top of a clapham omnibus or a lay man to arrive at the conclusion that the bottle of the plaintiffs and the bottle of the defendants are one and the same type and much of a muchness could be seen between the two and even an expert by simply observing cannot make any distinction between the two. The question might arise as to whether the defendants should be allowed to carry on with such design and shape or the plaintiffs should be allowed to carry on with such shape and design. As of now, the balance of convenience relating to this point is concerned, it is favour of the plaintiffs for the reason that already they got their bottle patented and at page 26 of the paper book submitted by them, the very sketch of that bottle is found exemplified . Whereas, the defendants are only importers and they got only one consignment comprised of eight thousand bottles and they sold them and even as on the date of the defendants getting the consignment, the plaintiffs have been manufacturing their bottles and selling and in such a case, a fortiori only the defendants should be injuncted from selling or manufacturing bottles of the similar shape and size. 30. The learned Senior Counsel for the plaintiffs would submit that as of now, the defendants are not manufacturing bottles similar to that of the bottles of the plaintiffs and they got only one consignment and that too comprised of eight thousand pieces and they sold them and in such a case, there is no harm in injuncting the defendants from dealing with the product similar to that of the plaintiffs product. 31. 31. At this juncture, the learned counsel for the defendants would submit that even though they were only importers of consignment and they sold that consignment also, now they intend either to import further or manufacture such bottles. However, I am of the considered view that in view of the ratiocination adhered to supra, the defendants shall not import or manufacture bottles resembling the features attributable to the plaintiffs bottle. The learned Senior Counsel for the plaintiffs specifically has drawn the attention of this Court to the top as well as the bottom of the plaintiffs bottle and he pointed out that at the top, i.e.. on the cap there are twelve grooves and the same are found simulated in the product of the defendants bottle and at the bottom of the plaintiffs bottle there are eight grooves, similarly in the defendants bottle there are eight grooves. As such, I closely observed both the bottles. Ex facie and prima facie it is a clear case of passing off the goods of the plaintiffs and necessarily the design adopted by the plaintiffs should not be adopted by the defendants either in selling the products or in manufacturing similar bottles with such design. 32. The learned counsel for the defendants would make an extempore submission that if there is significant change relating to the cap as well as the bottom portion in the bottle which might be manufactured by the defendants that would serve the purpose and by no stretch of imagination that could be termed as passing off the product of the plaintiffs. 33. Whereas, the learned Senior Counsel for the plaintiffs would submit that mere such insignificant change would not enable a common man to distinguish the plaintiffs product from the defendants product. The learned counsel for the defendants would come forward with one more suggestion that this Court could impose additional condition also, that in addition to ordering the defendants to change the design of the cap as well as the bottom of the bottle, could order that in the middle part of the bottle there shall be marking in metal itself showing certain ridges and that is because the plaintiffs product does not have such ridges in the middle and he submits the same without prejudice to the defendants rights. 34. 34. I could countenance and hold that such a suggestion as put forth by the learned counsel for the defendants could be accepted pending disposal of the suit and a common man on seeing such differences as suggested by the defendants in their product would not be misled as though it is a product of the plaintiffs. Accordingly, I am of the view that all these three applications could be disposed of as under: (i) The prayer for injunction as against the defendants not to adopt the bottle containing thermal mechanism is dismissed pending disposal of the suit. (ii) However, the defendants are injuncted from passing off or simulating the plaintiffs bottle by importing or manufacturing similar RTIB with such design as that of the plaintiffs. The defendants are injuncted from using the design of the cap as well as the design of the bottom portion as found in the plaintiffs RTIB. The defendants shall see that the product which they sell or manufacture contains metal ridges not less than five in number in the middle outer circumference of the bottle. Whereas, the learned Senior Counsel for the plaintiffs at this juncture would submit that there shall be injunction as against the defendants, even not to have the similar type of neck of the plaintiffs RTIB, for which the learned counsel for the defendants would submit that if such an injunction is granted, that would certainly amount to throttling the business of the defendants. Hence in such a case, such a submission on the side of the plaintiffs cannot be accepted at this stage. Accordingly, all these applications are disposed of. Registry shall list the matter for framing issues by next week.