- (1.) ORDER on Application (under ORDER XXXIX Rules 1 and 2 read with Section 151 C. P. C. This is another suit filed by same plaintiff (against different set of defend ants), transferred to this Court from court of District Judge, Udham Singh Nagar, under Section 104 of Patents Act, 1970, after the counter claim along revocation was filed by the defendants in the suit. (Earlier Suit No. 1 of 2008, filed by the plaintiff was transferred to this Court, against, Lamda Eastern Tel ecommunication Ltd. , with different story of infringement of same products. Reference -Acme Tele Power Ltd. Vs. Lamda Eastern Telecommunication Ltd. 2008 (1) Uttaranchal Decisions Pg. 467 ).
(2.) HEARD learned counsel for the parties at length on the application (6 -C) in Owned under Order XXXIX Rule 1 and 2 read with Section 151 of Code of Civil Procedure, 1908, by plaintiff, *nd objections/reply 2 ! -C and 22 i. e. , filed on behalf of defendants No. 1 and 2 thereto. Brief facts of the case, as alleged in the plaint are that plaintiff - Acme Tele Power Limited has its registered office in Gurgaon and its factory is located in SIDCUL, Pantnagar (Uttarakhand ). It is pleaded that plaintiff manufactures products known as "green Shelter" and "compact Power Interface Unit" at its factory within the territory of State of Uttarakhand. The two products are pur chased by and used in Telecom indus try for efficient management of the Tem perature for telecom equipment at telecom towers. Defendants No. 1 is a company running business of manufac turing and supplying Sintex BTS Shel ters (using there -in Integrated Power Unit), and defendant No. 2 is a partner ship firm manufacturing and selling In tegrated Power Unit, allegedly by infring ing the plaintiff's intellectual property rights. It is further pleaded in the plaint that plaintiff is committed to constant innovation and has spent huge capital and labour in inventing its products. The two products of the plaintiff namely Green Shelters and Compact Power In terface Units were the result of extensive research and development, as such, the application was moved by the plaintiff for getting registered the patent. Conse quently the authority concerned granted registration of patent No. 197086 on 11. 08. 2006, for Power Interface Unit and No. 197108 on 08. 09. 2006, for Cuboidal shaped green shelter. By virtue of ownership of the above patents, plaintiff has right to prevent all other per sons from making, using, selling, offer ing to sell or importing the two products. It is alleged that the defendants are in fringing the valuable intellectual property rights of the plaintiff by manufacturing, using copy righted works of plaintiff, and selling the same in the market. With these pleadings, plaintiff instituted suit for permanent injunction. And this ap plication for temporary injunction is filed in the suit. Defendants filed their separate written statements and counter claims. In the written statement of defendant No. 1, territorial jurisdiction of the court in Uttarakhand is challenged with the al legation that no part of cause of action has arisen within the territory of Udham Singh Nagar (Uttarakhand ). It is also stated in the written statement of an swering defendant that suit is bad for misjoinder of causes of action. It is fur ther pleaded that, the present suit is filed after the plaintiff failed to get relief in suit No. 598 of 2005, instituted before Delhi High Court and withdrew it. It is stated by defendant No. 1 that he is manufactunng Base Trans. Station Shel ter (herein after referred as BTS Shelter) on the basis of the requirements of the specification demanded by the custom ers. It is specifically denied that patented products -namely 'cuboidal Shaped Green Shelter' (in short Green Shelter) and 'compact Power Interface Unit' (in short PIU) are inventions of plaintiff. It is stated that the products with differ ent names are used in telecommunica tion Industry for a long time. Nine dis tinguishing features between the products produced by plaintiff and the one by defendant No. 1 are enumerated in para 9 of the written statement. The defend ant No. 1 has pleaded that the plaintiffs patented product "green Shelter" is nothing more than workshop modifica tion and the patent is liable to be re voked. Objections filed under Section 25 (2) of Patent Act, 1970, by defendant No. 1 against patent No. 197108 and 197086, are pending for decision of the authorities concerned. Denying that plaintiff's right is infringed it is also pleaded by the defendant No. 1 that the answering defendant would suffer irrepa rable loss if the injunction is granted, in favour of the plaintiff while he (plaintiff) can be compensated in terms of money.
(3.) IN his written statement defend ant No. 2 has also raised objection as to territorial jurisdiction of the court. It is pleaded by said defendant that no cause of action has arisen to the plaintiff against the answering defendant. It is further pleaded that the plaintiff has not come to the court with clean hands and as such not entitled to the relief claimed. It is stated in the written state ment that there is material concealment of fact that Sintex has challenged the patents of plaintiff before the authorities concerned and the said matter is pend ing for disposal. Defendant No. 2 has further pleaded that products, which were got patented by the plaintiff, are not inventions. Phase Change Material (PCM), Power INterface Unit (PIU) and Green Shelter, are not inventions. PCM are products, known to the world for sev eral years and are being used for main tenance of temperature with or without use of air conditioners and can be con sidered environment friendly. IN fact petitioner was earlier purchasing PCM products from Australian manufacturer TEAP Energy Ltd. Similarly, PIU is a product where various electronic and electrical products like, Servo Stabilizer, Isolation Transformer, Alarm Panel etc. are to be in a Panel Board. Such de vices are also available in the market. Some assembles of PIU are known as. INtegrated Power Unit (IPU), Power Man agement Systems (PMS) etc. As such, the defendants are not barred from manufacturing and selling the same. Denying the copy rights of the designs chained by the plaintiff, it is pleaded that the plaintiffs design is nothing but workshop modification of the existing products. Denying that defendant No. 2 had any access to website or has downloaded any information at Pantnagar, it is stated that this Court has no jurisdiction to try the suit. Challeng ing the experts report, relied by the plain tiff, it is pleaded that no intellectual property right of the plaintiff is being violated by the defendants. It is further stated that if the plaintiff is granted in junction, it would cause enormous loss to the defendants, while plaintiff can be compensated in terms of money. It is fur ther pleaded that since patents in ques tion are challenged before the authority and the counter clarion is pending in this suit, as such no injunction can be granted, and the suit is liable to be dis missed. For disposal of application for temporary injunction, this Court has to see whether there is : 1. Prima facie case in favour of the plaintiff. 2. Balance of convenience in his favour. 3. Irreparable loss to him. Apart from this, it has also to be seen that whether the plaintiff has come with clean hands and has he not sup pressed the material facts from the court for obtaining the temporary injunction.;