The rights of a patentee under Section 48 of the Patents Act are not affected during the pendency of a post-grant opposition.

JUDGMENT

Mukta Gupta, J. - Ia 4830/2019 (filed by the defendant No. 2 under Order VII Rule 10 & 11 CPC)

1. Plaintiff has filed the present suit, inter alia, praying for a decree of permanent injunction against the defendant, their directors, servants, agents, licensee, distributors, etc. restraining them from making, manufacturing, using, offering for sale, selling and/or importing the impugned product "FM 120 CONEXUS" or any other product which is covered by the subject patent No. 307249 in India causing infringement of the plaintiff''s patent No. 307249 in short IN "249, as also restraining the defendants from selling, making, offering for sale, importing "FM 120 CONEXUS" or any product having the similar design as the plaintiff''s registered design 262629 amounting to infringement of the plaintiff''s registered design or passing the products of the defendant''s as that of the plaintiff''s, rendition of accounts, damages, etc.

2. Plaintiff is a company which was incorporated initially on 16th March 2000 as GM Trans Pak Private Limited subsequently changed to Torsa Metalmen Limited and thereafter to CDE Asia Limited around 2006. The plaintiff''s product range of wet processing equipments is used in quarries, mining & minerals and waste recycling products. Plaintiff has also established new processes in the Indian iron ore industry by developing custom built washing system which effectively remove contaminants such as silica and aluminum and introduces efficiencies in steel production. The plaintiff''s line of products are novel as they are invented and designed to vastly improve the quality, productivity, efficiency and profitability of sand aggregates washing industry with ensuring that the natural resources are preserved effectively. Plaintiff has also successfully developed process and technology to manufacture artificial sand from existing waste of stone crushing operations.

3. In the year 2013 the Managing Director of the plaintiff invented a novel system and method for classification of various materials, subsequent whereto plaintiff filed an application for grant of patent for the invention titled as "System/ Device Process for Classification of Various Materials" under the Patent Act, 1970 on 3rd September, 2013. The plaintiff also filed corresponding applications to protect the invention in other countries. The application of the plaintiff was published under Section 11A of the Patents Act on 6th March, 2015 in the Patent Journal for third party pre-grant opposition under Section 25 of the Act. No opposition to the said application was filed including by the defendant and after examination the plaintiff was granted the suit patent i.e. IN "249 on 12th February, 2019, thereby providing exclusive right to the plaintiff for a period of 20 years from the date of filing of the application to use the suit patent. The invention of the plaintiff intended to provide a method and a system for an integrated material classification solution to the material & mineral industry by reducing overall plant footprints, lowering the requirement of water and thus lowering the cost of production.

4. The plaintiff also filed a design application on 15th May, 2014 titled as "System Device Process for Classification of Various Materials" under the Designs Act, 2000 and after examination the said design was registered as Design No. 262629 and a certification of registration was issued on 20th March, 2015. Thus, the plaintiff obtained a copyright in the subject design for a period of 15 years from the date of filing of the application. The plaintiff also coined a trademark "COMBO" used to signify the product corresponding to the suit patent and the suit design. COMBO is directed to produce manufactured sand by washing and grading hard crushed stone fines that will eventually be used for construction purposes or supply to the ready-mix producers for production of concrete.

5. In the last week of November, 2018 the plaintiff came to know that def