Sanjay Kishan Kaul, J.

1. The present matter is concerned with a claim of infringement of the patent of the plaintiff in respect of a device for detection of antibodies to HepatIT is C Virus (for short, HCV) in human serum and plasma. The early detection of HCV is stated to be critical as there is no vaccine for the same.

2. The plaintiff is stated to be a Private Limited Company engaged in the manufacture and sale of diagnostic kits and is also stated to be a holder of various patents, designs and trademarks in respect of its products. The plaintiffs application (I.A. No. 11883 of 2006) under Order 39, Rules 1 and 2 and Section 151 of the Civil Procedure Code (hereinafter referred to as the said Code) is for the issuance of a temporary injunction restraining the defendants from infringing the plaintiffs Patent No. 194638 dated 22nd September, 2006 in a suit for permanent injunction, rendition of accounts and damages.

3. The plaintiff further claims to be a pioneer company enjoying a major market share and a constant innovator in technological breakthroughs in the field of diagnostic devices in India. It is stated that the plaintiff had established an inhouse Research and Development Department in 1987 which is duly registered and approved by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India.

4. It is averred that the plaintiff developed a diagnostic device namely HCV TRIDOT in the field of rapid visual test for the qualitative detection of antibodies to HepatIT is C virus in human serum or plasma. Such device is stated to ensure specificity and sensitivity in carrying out the tests making them viable for detection of HCV infection in laboratories, clinics, blood banks etc. It is claimed that the said device is a fourth generation device which is stated to detect the antibodies if present for 10-15 days. It was pointed out that the first generation devices could detect the antibodies if present for a period of more than three months, and the second generation devices in case of antibodies present for more than two months. In case of the third generation devices, this time period was reduced to one month.

5. The plaintiff company through its patent agents is stated to have applied for grant of patent in respect of the said product on 14-06-2000 with complete specifications comprising of various claims. The description of such invention has been given in claim 1 and 2 which is as under:

Claim No. 1

A device for the detection of antibodies of HepatIT is C Virus in human serum and plasma comprising base, an absorbent pad made of cellulosic material having a thickness of 2.4 to 2.7 mm positioned on the said base, an immunofilteration membrane on the said pad made up of cellulosic material having a pore size of 0.8-1.5 micron and diameter of 12 mm having three coatings of homogenous mixture of different HCV recombinant antigens as herein described Chemically linked and physically mixed along with the dispensing agent as herein described spotted on the said immunofilteration membrane, a top cover fitted tightly and removably attached to said base having a central hole conforming to the circumference of said immunofilteration membrane provided with two test dots (T1 and T2) and one built in quality control dot (C) within the circumference of said immunofilteration membrane to render 100% sensitivity and 98.9% specificity of the sample under test.

Claim No. 2

A device as claimed in claim No. 1 wherein the said dispensing agent is

weight/volume.

Disodium Hydrogen Phosphate Sodium Dihydrogent Phosphate Protein Stabilizer : : : 10-100 millimolar;10-100 millmolar;0.1-5% DetergentGlyceroland Preservative : : : 0.02-1% 10-20% 0.001-0.15%

Disodium Hydrogen Phosphate Sodium Dihydrogent Phosphate Protein Stabilizer : : : 10-100 millimolar;10-100 millmolar;0.1-5% DetergentGlyceroland Preservative : : : 0.02-1% 10-20% 0.001-0.15%

and the balance being