PRABHA SRIDEVAN,CHAIRMAN - (1.) THIS application along with others between the same parties was heard by another Bench of the IPAB. Orders were reserved. The then Technical member retired before the orders were pronounced. So the cases were listed to be heard again. This application is for revocation of the patent No.198648 (Invention in short).
(2.) MR . R. Parthasarathy appeared for the applicant and Mr. Praveen Anand represented the respondent. Both the learned counsel, besides arguing the matter at length, have also filed their written submissions on the preliminary issue as well as on merits. Preliminary objections by respondent Locus -standi
(3.) A Preliminary objection has been taken by the respondent herein questioning the locus -standi of the applicant to move the revocation application as a "person interested" under S.64 of the Patents Act, 1970.(Act in short) .This question has already been decided against the respondent by this Board in the cases between the same parties in ORA/43/2009/PT/CH and others by order dated 16.11.2010. We will call it the First Batch. This revocation application forms part of the Second Batch which had to be heard again. The Board which heard the First Batch was pleased to hold that the applicant has "a known and general interest" together with "commercial interest" by the grant of the patent in question and therefore, they are definitely "persons interested". All the revocation applications in the First Batch were allowed and the patents were revoked. The respondent has challenged these orders in the Hon'ble Madras High Court and the writ petitions are pending. According to the learned Counsel Mr. Praveen Anand appearing for the respondent, the Articles of Association of the applicant merely authorise the applicant to defend the company and to file suits on behalf of the company in matters that may arise out of contractual laws, etc. Therefore, filing of proceedings against the applicant's own Chairman falls outside the scope of the conditions mentioned in the Articles of Association. According to the respondent, the Articles of Association do not confer powers on Mr.Yogesh Mehra to institute proceedings against Enercon GmBH and the respondent herein. The technology has been used with the consent of the majority shareholders and therefore, the applicant cannot challenge the same technology. It was submitted that the dispute between the parties as regards management and operations of the applicant is sub -judice before the Company Law Board which has directed maintenance of status quo by its order dated 29.10.2007. The Company Law Board had further directed that no Board Meeting shall be convened or held and no circular or resolution shall be issued. Therefore, the revocation petition has been filed violating the order passed by the Company Law Board. It was submitted that the applicant had never disputed the validity of the patent in question until the termination of the last licence agreement on 8.12.2008 and for 12 years, the patent had not been challenged. It was submitted that the applicant is estopped by convention and the applicant cannot approbate and reprobate and blow hot and cold. On the one hand, the applicant has derived the benefit of the patent and on the other the applicant has challenged the validity of the patent. It was also submitted that the applicant should elect the forum for obtaining relief. It cannot simultaneously proceed with the counter claim before the Delhi High Court and pursue the revocation petition before the IPAB. It was submitted that following CEO & Vice Chairman, Gujarat Maritime Board v. Haji Daud & Ors. [(1996) 11 SCC 23], this Board must decide all matters ancillary to the revocation proceedings and this Board is vested with the powers to decide the question of locus standi and whether the applicant is a person interested'. The learned counsel referred to several statements on the website of the applicant, where these inventions were described as break -through innovations and submitted that the applicant cannot make a volte -face and attack the same technology. The learned counsel submitted that the applicant cannot now challenge the very same technology which it had used and gained financial advantages for over 17 years. The applicant has held out to the public that it is associated with Enercon GmBH and therefore it cannot move the invalidation proceedings. The conduct of the applicant is mala fide and the applicant has not come to the Court with clean hands.;