Chinnappa Reddy, J. - (1.) The long and grasping hand of a Multi-National Company, the Monsanto Company of St. Lous, Missouri, United States of America, has reached out to prevent alleged infringement of two of their patents (Numbers 104120 and 125381) by the defendant, an Indian Private Limited Company. Though the suit, as initially laid, was with reference to two patents, the suit was ultimately confined to one patent only (Number 125381), the period for which the other patent (104120) was valid having expired during the pendency of the suit. The suit was decreed by the trial court, but was dismissed 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.
(2.) 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. Scientist Dr. John Olin discovered CP53619 with the formula '2-Chloro-2', 6'-Diethyl-N-(Butoxy-Methyl) - Acetanilide' which satisfied the requirement of a weed killer which had no toxic effect on rice. The annual report of the International Rice Research Institute for 1968 stated, "Weed control in rice was an important part of the Agronomy program. The first agronomic evidence of the efficacy of granular - trichloroethyl styrene for the selective control of annual grasses in transplanted rice was obtained at the Institute. Another new accession, CP53619, gave excellent weed control in transplanted flooded and nonflooded, upland rice." It was further stated "CP53619 at 2 and 4 kg/ha a.i. appeared 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.
(3.) 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 numbers 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 annexures I and II. After stating so much the plaintiffs said, and this is very important, "THE ACTIVE INGREDIENT MENTIONED IN THE CLAIM IS CALLED "BUTACHLOR". It suggested, without expressly saying it that the Plaintiffs' patents covered Butachlor also which in fact it did not, as we shall presently see. It was next stated that the first plaintiff had permitted the second plaintiff to work the patents from 11971 onwards under an agreement dated September 3, 1980. The second plaintiff had been manufacturing and marketing formulations according to the Patents Numbers 104120 and 125381 and 'a specimen tin containing formulations produced by the second plaintiff according to the said two patents and sold in the market by the second plaintiff' was produced along with 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 - 59' manufactured by the. defendant were purchased by the plaintiffs and were produced along with the plaint as M. Os. 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 50% W/W" According to the plaintiffs, the legend on the tins containing the substance manufactured by the defendants showed that what was sold by the defendants was nothing but a reproduction of the first plaintiffs patented formulations. The formulations of the defendant were sent to Shri Ram Institute for analysis and they were said to contain the chemical "Butachlor Chemical formula for which is 2 Chloro 2' 6' - Diethyl - N - (Butoxymethyl) Acatanilide." On these averments, the plaintiffs alleged that the defendant had infringed their Patents Numbers 104120 and 125381 by selling formulations covered by them. The plaintiffs sued for an injunction to restrain the defendant from infringing their Patents Numbers 104120 and 125381 by the manufacture or sale of the infringing formulations as contained in this marked as M. O. Nos. 2 and 3. The plaintiffs 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 or alkoxy having from I 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, alkonyl or alkynyt having from 1 to 18 carbon atoms, aryl having from 6 to 24 carbon atoms, heterocyclyl having a maximum of 24 carbon atoms and from 1 to 3 heteroatoms, 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' tertbutyl-2-chloro-N-(2-propynyloxy-'methyl)-6'-methylacetanilide. 3. A Phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2tertbutyl-2-chloro-N-(2-propynyloxy- methyl) 6-methylacetanilide. 4. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 27tertbutyl-2-chlorb-N-(Allyloxymethyl)-6'methylacetanilide. 5. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is Ttertbutyl-2-bromo-N-methexy-methyl-6'- methylacetanilide. 6. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is Ttertbuty 2-bromoN-(2-propynyloxymethyl) 6'- methylacetanilide. 7. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2chloro-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- (methoxyethoxymethyl)- 6'-methylacetanilide. 10. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2'tertbutyl-2-brome-N- (2-meth(jxyethoxymethyl) -6'-methylacetanilide. 11. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2bromo-T-tert-butyl-N-(2, 3-dihydroxypropoxymethyl)-6'-methylacetanilide. 12. A phytotoxic composition as claimed in Claim 1, wherein the active ingredient is 2chloreo-2', 6-dimethyl-N-(isopropoxymethyl)acetanilide. 13. A phytotoxic composition substantially as herein before described." In the specification relating to "Grass selective Herbicide Compositions" (Specification No. 125381), it was claimed: "We claim: 1. A herbicidal composition in the form of an emulsion, suspension or dispersion. comprising as active ingredient a compound selected from the group a) 2',6'-deithyl-N-butoxymethyl-, alphachloroacetanilide, and b) 2',6'-deithyl-N-(2-butoxyethyl)alphachloro-acetanilide, or a mixture of (a) and (b) in admixture with one or more diluents or carriers and surface active agents in which an emulsion is obtained by dissolving the active ingredient in an organic solvent and thereafter dispereing the solution in another liquid medium in the presence of an emulsifying agent such as herein described. 2. A composition 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 an natural clays, phyrophyllites and vermiculite having a particle size of 2000 to 149 microns, preterably, of 1410 to 250 microns, are used. 4. A herbicidal composition in the form of an emulsion, suspension or dispersion substantially as hereinbefore described.";