TMI Blog1986 (1) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... fs since there was no patent for Butachlor, as admitted by the plaintiffs. Emulsification was the well-known and common process by which any Herbicide could be used. Neither Butachlor nor the process of Emulsification was capable of being claimed by the plaintiff as their exclusive property. The solvent and the emulsifier were not secrets and they were admittedly not secrets and they were ordinary market products. From the beginning to the end, there was no secret and there was no invention by the palintiffs. The ingredients, the active ingredient, the solvent and the emulsifier, were known; the process was known, the product was known and the use was known. The plaintiffs were merely camouflaging a substance whose discovery was known through out the world and trying to enfold it in their specification relating to Patent Number 125381. The patent is, therefore, liable to be revoked. - Civil Appeal No. 1490 of 1984. - - - Dated:- 14-1-1986 - O. CHINNAPPA REDDY AND E. S. VENKATARAMIAH, JJ. For the Appellants : S. Chellaswamy, N.H. Hingorani, Mrs. Kapila Hingorani, Mrs. Rekha Pandey and D. Sadasivan For the Respondent. : F.S. Nariman, M.K. Rao, P.N. Ramalingam and A.T.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .i. appeard at least twice among the 20 best treatments" and "the most outstanding new pre-emergence herbicide was 2-chloro-2 , 6 - diethyl-N- (butoxymethyl)-acetanilide (CP 53619)." The annual report of the International Rice Research Institute for 1969 shows that the herbicide CP 53619 came to acquire the name of Butachlor. It is now necessary to refer in some detail to the averments in the plaint, as the decision of the case, in the view that we are taking, turns very much on what the plaintiffs themselves had to say about their case. The first plaintiff is the Monsanto Company and the second plaintiff is a subsidiary of the first plaintiff registered as a Company in India. It was stated in the plaint that the first plaintiff was the patentee of inventions entitled "PHYTOTOXIC COMPOSITIONS" and "GRASS SELECTIVE HERBICIDE COMPOSITIONS", duly patented under patent number 104120 dated March 1, 1966 and 125381 dated February 20, 1970. The claims and the particulars relating to the inventions were stated to be contained in the specifications of the two patents annexed to the plaint as annexure I and II. After stating so much the plaintiffs said, and this is very important, "THE ACT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also asked for an account etc. Annexed to the plaint were the two specifications relating to Patent Numbers 104120 and 125381. In the specification relating to "Phytotoxic Composition" (Specification No. 104120), it was claimed : "We Claim : 1. A phytotoxic composition comprising as an active ingredient a compound of the formula shown in Figure 1 of the accompanying drawings, wherein R1 and R2 are alkyl of alkoxy having from 1 to 10 carbon atoms, R3 is halogen, alkyl or alkoxy having from 1 to 10 carbon atoms, n is an integer from 0 to 3, A is oxygen or sulfur, X is chlorine, bromine or iodine, and Z,Z1 and Z2 are hydrogen, alkyl, alkoxy,alkenyl or alkynyl having from 1 to 18 carbon atoms, aryl having from 6 to 24 carbon atoms, heterocyclyl having a miximum of 24 carbon atoms and from 1 to 3 hetero atoms, or two of Z groups are combined to form a bivalent alkylene radical having from 1 to 6 carbon atoms in admixture with an adjuvant such as herein described, the active ingredient in the said composition being present in an amount of at least 0.1 per cent by weight. 2. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2 -tertbuty 1-2- chloro-N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition as claimed in claim 1, which further comprises one or more compounds selected from the following - conventional pesticides, fertilizers, and extenders such as herein described. 3. A composition as claimed in claim 2, wherein mineral extenders such as natural clays, phyrophyllites and vermiculite having a perticle size of 2000 to 149 microns, preferably of 1410 to 250 microns, are used. 4. A herbicidal composition in the form of an emulsion, suspension or dispersion substantially as hereinbefore described." We do not propose to set out in detail the contents of the written statement. It is sufficient to state that the Defendant claimed as he was entitled to do under s. 107 of the Patents Act 1970, that the patents were liable to be revoked under s. 64(1) (a),(b),(d),(e),(f),(g),(h),(i),(j),(k),(l) and (m) of the Patents Act. The defendant also made counter claim seeking revocation of the patents. A close scrutiny of the plaint and a reference to the evidence of the witnesses for the plaintiff atonce exposes the hollowness of the suit. We must begin with the statement in the plaint that "THE ACTIVE INGREDIENT MENTIONED IN THE CLAIM IS CALLED BUTACHLOR " which sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaint and that it was on his instructions that the plaint was drafted. He stated that according to him, by selling his formulations the defendant had infringed Patents Numbers 104120 and 125381, though he was unable to explain which part of his claim in Patent Number 104120 was infringed as he was not a Chemist. He stated that he said so and was able to say so in consultation with the Managing Director of the second plaintiff company. He stated that it was explained to him by PW-2 that both the Patents Numbers 104120 and 125381 were infringed. He also admitted that it was he that had signed the specification of 104120 and while he was not sure whether he had signed the specification Number 125381, he saw that it had been signed by Depenning and Depenning. We, therefore, see that Butachlor which was the common name for CP 53619 was discovered, even prior to 1968 as a Herbicide possessing the property of nontoxic effect on rice. The formula for the Herbicide was published in the report of the International Rice Research Institute for the year 1968 and its common name Butachlor was also mentioned in the report of the International Rice Research Institute for the year 1969. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sec. 64(1), it is not necessary that it should be widely used to the knowledge of the consumer public. It is sufficient if it is known to the persons who are engaged in the pursuit of knowledge of the patented product or process either as men of sciene or men of commerce or consumers. The section of the public who, as men of science or men of commerce, were interested in knowing about Herbicides which would destroy weeds but not rice, must have been aware of the discovery of Butachlor. There was no secret about the active agent Butachlor as claimed by the plaintiffs since there was no patent for Butachlor, as admitted by the plaintiffs. Emulsification was the well-known and common process by which any Herbicide could be used. Neither Butachlor nor the process of Emulsification was capable of being claimed by the plaintiff as their exclusive property. The solvent and the emulsifier were not secrets and they were admittedly not secrets and they were ordinary market products. From the beginning to the end, there was no secret and there was no invention by the palintiffs. The ingredients, the active ingredient, the solvent and the emulsifier, were known; the process was known, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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