Soumen Sen, J.

1. This is an application by DYS Impex Private Limited for leave to intervene and for recalling of the order dated 17th June, 2015 passed in G.A. 3378 of 2014. The applicant is defendant no.2.

2. In a suit for infringement of patent an order of injunction was passed on 17th June, 2015 in relation to the patent of the plaintiff.

3. The applicant claims to be a manufacturer of battery operated electric cycle rickshaws, cargo vehicles and their spares which are sold under the word mark “Basantee” and device “Basantee Eco Drive”.

4. The grounds for recalling of the order are primarily on the grounds mentioned in Section 64 of the Patents Act. The said Section enumerates grounds by which a patent can be revoked. The grounds for revocation in the instant matter are :

(a) The patent of the plaintiff is based on a prior published document. The plaintiffs have obtained the patent by copying and pasting materials from various prior published documents. The patent comprises features that were available in public domain prior to 2nd May, 2005, being the date of the patent.

(b) The invention claimed in claims 1 to 5 was publicly known or publicly used in India before 2nd May, 2005. The invention, as claimed in claims 1 to 5 is obvious and does not involve any inventive step.

(c) The complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed that is to say, the description of the method or the instruction for the working of the invention as contained in the complete specification are not by themselves sufficient to enable a person in India possessing average skill in, and average knowledge of the art, to which the invention relates.

(d) The subject of claims 1 to 5 is not an invention within the meaning of the Act and is not patentable.

5. The petitioner refers to a literature published in Wikipedia. At the time of argument this literature was not relied upon. Apart from the aforesaid, the petitioner has relied upon an article published in 1999 and technical bulletin of Duracell, to demonstrate that the patent is an exact replica of what is described as reaction formula in Page 18 of Annexure I, and what is claimed in claim 1 of Annexure J, in as much as figure 2.11 of Page 2 of the Bulletin of Duracell, would make it clear that this figure has been copied as figure 4 in the patent.

6. The petitioner has also referred to PCT publication of PCT application of PCT/2001165 published on 18th March, 2004 to demonstrate that the first page of the said document would make it clear that the reaction formula in page 17 of Annexure I and also the feature and result in the characteristic portion of claim 1 are all known.

7. Mr. Rudraman Bhattacharya, Learned Counsel appearing on behalf of the applicant has referred to Section 64(1)(a), 64(1)(e), 64(1)(f), 64(1)(h) and 64(1)(k) of the Patents Act, 1970 and submits that the grounds taken in the petition are covered by the said provisions of the Patents Act 1970. The literature and documents disclosed in the petition clearly support the grounds made out in the petition for revocation of the patent. It is submitted that under Section 107 of the Patents Act, 1970, the petitioner is entitled to take such grounds as a defence.

8. Mr. Bhattacharya submits that the mere fact of granting of a patent is not in itself an indication that the plaintiff has established to the satisfaction of any authority that he has a right to the monopoly of which he claims. The order of the patent controller granting the patent and the decision on the opposition cannot in itself give rise to a presumption of validity of the patent notwithstanding the investigation and examination made and the same can be challenged. The actual user and duration of the patent alone cannot give rise to a presumption of validity of the patent.

9. Mr. Bhattacharya, the learned Counsel in this regard has relied upon the decision of our Court in Industrial Gases Ltd. & Anr. V