Process of manufacturing “Engrave design” – Patent Registration in Coimbatore
Process of manufacturing “Engrave design” etc.,
Clearly and plainly, the actions of the custom authority/ defendant No. 2 to indulge into such action giving its own interpretation to the rules and circulars contrary to the court’s interpretation once the orders of this court are in force is not merely wrongful, illegal, actuated by malice but also is an utter disrespect to the orders of this court. The malafides of the defendant No. 2 is apparent when in the teeth of the orders of this court, the commissioner of customs are giving instructions to the fields to further continue to interdict the consignments on the basis of infringement of the patent without any fetters. The said circular states that the earlier circular nowhere curtails the powers and the customs are free to do what. They are empowered under the customs act which amounts to passing its own judgment and dictate contrary to the courts orders which are in force without waiting for the orders of this court. The said circular dated 27th March, 2012 appears to have been issued by defendant no.2 is illegal and was issued in order to frustrate the orders passed by courts. Thus, even formal parties; let them remain as parties to the suit in view of their conduct.
This court is not sure as to what was such a grave urgency in relation to enforcement of the patents which compelled the customs or defendant No. 2 to immediately go all the way contrary to the orders of this court and issuing the instructions to the other offices to continue to do such an exercise which in the view of this court is not the mandate of the law where under the customs are merely implementing authority under the judicial orders of the court. Thus, the said instructions issued by way of circular dated 27th March 2012 are declared as inconsequential in nature being illegal. Thus, the role of the defendant No. 2 cannot be obviated at this stage. It is thus a mixed question of fact and law as it will be revealed after fact finding exercise is conducted in the trial as to what extent the defendant No. 2 are guilty of the groundless threat. At this stage, it would not be possible to simply drop the defendant Nos. 2 and 3 from the action though this Court feels that they are formal parties and no monetary relief against them is liable to be patent granted. They are retained in the matter as they someway coming in the way of the plaintiffs as threats to them along with the defendant no. 1’s act. In case, they are deleted from the array of the parties, the case of the plaintiff would be prejudiced. The ex parte interim order was passed in the presence of defendant No. 2 after hearing. Hence, there is no force in the submission of defendant No. 2 that the suit be dismissed. The plaintiff admittedly had filed the application under Section 80 of CPC seeking exemption for issuance of notice in view of urgency of the matter. Notice of patent application was issued. No reply has been filed. Hence, plaintiff’s application prayer of granting leaves of exemption is allowed.
This court at least expects the defendant Nos. 2 and 3 and other officials of custom to follow the interpretation of rules accorded by this court and the said enforcement machinery should work in accordance with the clear legal position and not contrary to the same by way of passing the judgments by the officials of the customs contrary to views preferred by the courts. From the above discussion, it is clear that all the grounds which are raised by the defendants to resist the plaintiff’s patent application for ad interim injunction fails. There is no alternative remedy as contended by the defendants which may affect the statutory remedy under the Patents Act to approach this court seeking relief. The suit is also not barred under section 9 of the code. The order of this court also does not affect the orders of Bombay High Court as what Bombay High court directed to customs to follow the law. If the position in law relating to the border measures is the one discussed above, the same cannot be said to be contravening any courts order. All other submissions of the defendants stand answered in the discussion under the several heads. The plaintiff has thus made a prima facie case for the grant and confirmation of the injunction of patent as the actions of the defendant no. 1 and defendant no. 2 are groundless threats in view of no such power exists under the law with customs to interdict the goods on the basis of infringement of patent under the rules framed in the present form except to the extent of performing the role of implementing authority. The balance of convenience also lies in favor of the plaintiff and against the defendants as the plaintiff’s reputation shall be damaged and it shall be inconveniences if the defendants shall continue to indulge into such illegal acts without approaching the civil court for proper adjudication. The irreparable loss shall also ensue to the plaintiff and not to the defendants.
Therefore, the following orders and directions are passed: a) The Defendant No. 2 (either on its own initiative or by way of complaint of the defendant No. 1) or its officials are restrained from interdicting or interfering with import consignments which are being effected by the plaintiffs basing upon the complaint of infringement of patent made by the defendant No. 1 until the defendant No.1 approaches the civil court for the infringement of its patent and the said order of the civil court directs such detention of the goods. b) The operation of the complaint pending before the defendant No. 2 shall remain stayed until the time the civil court decides the infringement claim or the decision on the revocation proceedings attains finality whichever is earlier. c) The defendants shall not extend any such threats by way of notices or otherwise on the basis of infringement of patent of the defendant No.1. The defendant No. 2 shall await the outcome of the revocation proceedings or infringement proceedings if any prior to calling upon the plaintiff’s for any such clarification in the complaint proceeding.
Similarly, in so far as exercise of Review of patent is concerned, clearly that is an exercise by quasi-judicial authority. Once a quasi-judicial authority has to exercise review jurisdiction then it is contemplated firstly that the party be heard and secondly that the Review is disposed of by a speaking order and by recording reasons for the disposal of the Review Application. In the instant case that has also not been done. In the light of that the order dismissing the application for Review dated November, 28, 2006 is also liable to be quashed and set aside. However, no purpose will be served in directing the hearing of the review in view of the order to be passed.
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