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TMI Blog1986 (1) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellate court. The appeal which is now before us has been filed pursuant to a certificate granted by the appellate bench of the High Court on the ground that substantial questions of law of great public importance were involved. The questions, however, were not specified in the certificate. As we see it, we are unable to find any substantial questions of law of great importance. We are afraid both the lower courts misdirected themselves and missed the real substance of the dispute and found themselves chasing the mirage of legal questions which did not strictly arise. We may first refer to a few preliminary facts. Weeds, as is well-known, are a menace to food crops, particularly crops like rice which belong to the grass-variety. Research has been going on for years to discover a weed killer which has no toxic effect on rice, that is to say, a Herbicide which will destroy the weeds but allow rice to survive without any deleterious effect. For long the research was futile. But in 1966-67 came a break through. A Scientist Dr. John Olin discovered CP53619 with the formula '2-Chlore- 2',6'-Diethyl-N-(Butoxy-Methyl)- Acetanilide' which satisfied the requirement of a weed kille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the plaint as M.O.I. It came to the notice of the plaintiffs, it was averred, that the defendant was attempting to market a formulation of Butachlor covered by the said patents. They, therefore, wrote to the defendant drawing their attention to the existence of the patents in their favour. Some correspondence ensued. In the second week of May, 1981, the second plaintiff found that the defendant was marketing formulation of Butachlor covered by the patents of the first plaintiff. Sample tins of "Butachlor- 50" manufactured by the defendant were purchased by the plaintiffs and were produced along with the plaint as M.O.s 3 and 4. The legend on the tins was as follows : "Delchor-50 Composition (Butachlor 50%E.C.) Butachlor 50% W/W Herbicide Solvents and Emulsifiers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is 2'-tertbutyl-2- chlore-N(allyloxymethyl)-6' methylacet-anilide. 5. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2-tertbutyl-2- brome- N-methexy-methyl-6'-methylacetanilide. 6. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2'-tertbutyl-2- broome-N-(2-prophynylexymethyl)-6- methylacetanilide. 7. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2-chloro-2', 6- disthyl-N-(methoxymethyl) acetanilide. 8. A phytotoxic composition as claimed in Claim 1 wherein the active ingredient is 2'-tertbutyl-2- bromo-N-(allyloxymethyl)-6'-methylacetanilide. 9. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2'-tertbutyl-2- choloro-N- (2-methoxyethoxymethyl) -6'- methylacetan-ilide. 10. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2'-tertbutyl-2-bromo-N- (2-methoxyethoxymethyl) -6- methylace tanilide. 11. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2-bromoe-2'- terbutyl-N-(2,3 - dihydroxypropoxyomethyl)-6- methylacetanilide. 12. A phytotoxic composition as claimed in Claim 1, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. The learned counsel for the plaintiffs also admitted the same before us. PW-1, Dr. Dixon, Chemist of the first plaintiff company, after explaining the use of an emulsifying agent, in answer to a direct question, whether his company claimed any patent or special knowledge for the use of any particular solvent or particular emulsifying agent, in the formulation in their patent, had to admit that they had no such patent or special knowledge. He further admitted that the use of solvent and emulsifying agent on the active ingredient was one of the well-known methods used in the pesticide industry to prepare a marketable product. He also expressed his inability to say what diluents or emulsifying agents the defendant used in their process. PW-2 admitted that Butachlor was a common name and that the Weed Science Society of America had allotted the common name. He stated that "Machete" was the brand name under which their company manufactured Butachlor. He also stated that there could be a number of concerns all over the world manufacturing Butachlor, but he was not aware of them. He admitted that they did not claim a patent for Butachlor. He stated that though his company did not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Emulsification is a well-known process and is no one's discovery. In the face of the now undisputable fact that there is no patent for or any secrecy attached to Butachlor, the solvent or the emulsifying agent and the further fact that the process of emulsification is no new discovery, the present suit based on the secrecy claimed in respect of the active agent Butachlor and the claim for the process of emulsification must necessarily fail. Under sec. 61(1)(d), a patent may be revoked on the ground that the subject of any claim of the complete specification is not an invention within the meaning of the Act. Under sec. 64(e), a patent may be revoked if the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the date of the claim, etc. Under sec. 64(1)(f), a patent may be revoked if the invention so far as claimed in any claim of the complete specification is obvious or does not involve any inventive step having regard to what was publicly known or publicly used in India or what was published in India before the priority date of the claim (the words "or elsewhere" are omitted by u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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