Point of Law: Intellectual property Rights - Patent - Infringement of products - Existing stock shows that lot of production of impugned product took place also when pre-grant opposition filed by Association was dismissed and patent was granted.

JUDGMENT :

JAYANT NATH, J.

I.A. No. 6331/2021

1. This application is filed by the defendants seeking permission to sell the existing stock of the subject matter product as stated in this application.

2. It is pleaded that on 23.10.2020 this court passed an ex-parte injunction restraining the defendants, their directors etc. from manufacturing, selling, offering to sell, using, exporting, importing, directly or indirectly dealing in fungicidal composition which is the subject matter of IN 004 thereby amounting to infringement of the plaintiff’s right. The said interim order continues to operate. It is pleaded that this order is liable to be vacated on various grounds raised by the defendants in their application under Order 39 Rule 4 CPC.

3. It is further stated that by a common order dated 28.04.2021 passed by the Division Bench of this court in FAO (OS) (COMM) No. 38/2021 and other connected appeals, the appeals filed by the defendants were disposed of with liberty to the defendants to pursue the remedy seeking permission to sell the subject matter product before this court. Hence, the present application.

4. It is further pleaded that the defendants stopped manufacturing and selling the subject matter product from the date of execution of the local commission, which was carried out pursuant to the order of this court dated 23.10.2020. A detailed chart is given in the application of the amount of the product that was manufactured prior to the injunction order stating that some of the stock is about to expire as the product has a shelf life of two years. Further the product is sold in the paddy season and if the defendants miss the relevant time, the same cannot be sold as shelf life would expire. This would result in huge financial loss to the defendants. As per the chart filed with the application, the defendants claim to have a pending stock of 13,622 litres valued at Rs. 27,74,509. The total stock including that of the defendants in other two connected suits is said to be 63,931 liters.

5. It is the stand of the defendants that till the application of the plaintiff under Order 39 Rules 1 and 2 CPC and the defendants’ application under Order 39 Rule 4 CPC are adjudicated upon, the defendants may be permitted to dispose of the existing stock.

6. The plaintiff has strongly opposed the present application. In reply, the following pleas have been raised to oppose this application:

(i) The plaintiff issued a legal notice on 18.05.2019 to the defendants before grant of the patent to which no reply was received. The defendants have ignored the legal notice and had gone ahead and manufactured the said goods. Further a pre-grant opposition to the patent was filed by Haryana Pesticides Manufactures’ Association of which the defendant is also a member. The said opposition was rejected on 20.07.2020. Despite the said facts, the defendant continued to manufacture the infringing product with impunity at its own risk.

(ii) It is further pleaded that the defendants have sold 2,48,255 liters of infringing product for a value of Rs. 16,97,95,804 since April, 2020 preceding the grant of the injunction order dated 23.10.2020 passed by this court. Hence, it is pleaded that the defendants have taken the risk of manufacturing the infringing product despite being aware that the same infringes the suit patent and is objected to by the plaintiff. The defendants cannot now complain and seek relief on any ground of equity.

(iii) It is further pleaded that any further violation of the rights of the plaintiff would be in violation of section 48 of the Patent Act. It is pointed out that this court has already taken a prima facie view about the infringement committed by the defendants while issuing interim injunction dated 23.10.2020.

(iv) It is pleaded that the defendants have caused irreparable damage to the plaintiff as they have sold infringing product worth Rs. 16,97,95,804 in the period 2020. The figures of 2019 are not available and have not been disclosed by