JUDGMENT

CHINNAPPA REDDY, J.:— 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