JUDGMENT

Dr. S. Muralidhar, J.

IA No. 6782/2009(u/O XXXIX Rules 1 & 2 CPC) & IA No.8372/2009 (u/O XXXIX Rule 4 CPC)

1. IA No.6782/2009 is an application by the Plaintiff under Order XXXIX Rules 1 and 2 CPC seeking an ad-interim ex parte injunction restraining the Defendant No.1 from infringing the rights of the Plaintiff under No.213608 (granted on January 9, 2008 by the Controller of Patents) by accepting the offer for sale of a side bearing pad assembly by the Consortium of which Defendants 2 to 4 are members. It also seeks an injunction to restrain Defendants 2 to 4 from making, manufacturing, using or offering for sale the side bearing pad assembly by infringing the Plaintiff's Patent. By an order dated 27th May 2009 this Court restrained Defendants 2, 3 and 4 and erstwhile Defendant No.3 till the next date of hearing from infringing the patent rights of the Plaintiff and further restrained them from manufacturing, using or offering for sale any device in infringement of the patent of the Plaintiff. IA No. 8372/2009 was filed thereafter by Defendants 2, 3 and 4 under Order XXXIX Rule 4 CPC seeking the vacation of the said stay order. It may be mentioned that after deletion of erstwhile Defendant No.3 from the array of parties, in the circumstances noticed hereafter, the erstwhile Defendants 4 and 5 have been renumbered as Defendants 3 and 4.

Background

2. The aforementioned suit has been filed seeking permanent injunction in the above terms and also for rendition of accounts by the Defendants and for payment by the Defendants of Rs. 1 crore as liquidated damages to the Plaintiff. The suit also prays for a direction that the entire stock of the impugned product in the custody or possession of the Defendants should be forthwith seized and delivered up to the Plaintiff for destruction.

3. The Plaintiff is a corporation organised under the laws of the State of Delaware, United States of America (`USA'). It claims to be the world leader in hot-cast urethane prepolymers and a leading manufacturer of specialty aqueous urethane dispersions and polyester polybols.

4. The Plaintiff has sought to explain the significance and use of the invention in respect of which a patent has been granted to it as under:

"axles and wheels of a rail car are mounted on wheel trucks that in turn support a carriage. A two stage suspension system comprising a primary and a secondary stage is generally employed on the wheel trucks. Although in India we call the entire coach as a `bogie'. This primary suspension isolates the wheel truck i.e. the bogie from the wheel. The secondary suspension isolates the carriage from the bogie. During movement of the train there is a lateral roll which is sought to be controlled by the secondary suspension systems that are placed between the wagons and the bogie i.e. the axels and wheels of the rail car. This secondary suspension system includes mounts for coupling both the bolster to the bogie and the carriage to the bolster. The bolster is supported on steel helical coil springs called bolter springs. For mounting the carriage on to the bolsters a cleat and a pad arrangement known as side bearer mount is commonly employed. The cleat can be in the form of a metal block or a block holding a wheel or a pad. Generally the pad is made of laminated rubber and steel, and is bolted to the carriage underbody. More recent pad designs employ urethane springs bonded with rubber. It is claimed that these mounting devices physically limit the extent of rail car lateral roll but do little to dampen roll forces".

5. According to the Plaintiff its invention "is directed to a side bearing pad assembly for absorbing and cushioning compression forces." The description of the invention is as under:

"The assembly comprises a first and second housing, a first and second load bearing member, and biasing means. The first housing has an exterior surface and defines a bore extending at least partway through the first housing. The first