The validity of a patent cannot be challenged without adequate pleadings and evidence supporting claims of invalidity; insufficient disclosures must be substantiated by facts.

JUDGMENT

Sanjeev Narula, J. (Oral)--In terms of the Order dated 12th January, 2022, the Plaintiff has filed an Affidavit of Service dated 28th January, 2022, enclosing therewith proof of service through e-mail, speed post as well courier tracking reports. The courier consignment has not been accepted by the addressee. In view of the above, Defendants stand served. Since there is no appearance on their behalf, they are proceeded against ex-parte.

2. Vide order dated 4th February, 2016, the following issues were framed:

"(i) Whether the impugned Patent No.IN240893 is invalid in view of any of the grounds raised in counterclaim No.38/2012? OPCC

(ii) Whether the defendants have infringed any of the claim of the impugned Patent No.IN240893? OPP

(iii) If the answer to issue no.(ii) is in affirmative, what is the relief that the plaintiff is entitled to, and for what period? OPP

(iv) Relief."

The afore-noted Issue No. (i) was taken up first and hearing on Issue No. (ii) and (iii) was deferred. In the judgment dated 10th August, 2021, the Court while rendering findings on Issue No. (i), rejected all grounds urged by the Defendants and upheld the patent. However, at the same time, the Court on its own, proceeded to analyse whether the subject patent was liable to be revoked under Sections 64(1)(h) and (k) of the Patents Act, 1970 [hereinafter, "the Act"] in the context of Section 10 of the Act. On this aspect, findings were rendered against Plaintiff and it was concluded that the subject patent i.e., `IN240893' - was invalid and liable to be revoked under Section 64(1)(h) and (k) of the said Act.

3. When the matter was carried out in appeal, the Division Bench vide order dated 1st December, 2021,¹ set-aside the Single Judge's judgement and made several observations as to how the Court should consider the grounds of revocation. The Division Bench directed the Single Judge to frame a specific issue, and accordingly, an additional issue was framed, which reads as follows:

"(i) Whether the Plaintiff's Patent Number IN 240893 is liable to be revoked on the grounds under Sections 64(1)(h) or 64(1)(k) of the Patents Act, 1970 in the context of Section 10 of the Patents Act, 1970? OPCC."

The afore-noted issue was framed in the presence of the Defendant's counsel. However, the said counsel subsequently took discharge, and summons were re-issued to the Defendant, and now, as noted above, despite service, there is no appearance on their behalf.

ARGUMENTS ADVANCED

4. Mr. J. Sai Deepak, counsel for the Plaintiff, has been heard at length on the afore-noted additional issue. Mr. Sai Deepak argues that the onus of proof on the issue lies on the Defendants/counter-claimants. The ground for revocation of patent under Sections 64(1)(h) and (k) of the Act has to be premised on facts. However, in absence of any foundation in pleadings or evidence, the issue stands disproved against the Defendants. Mr. Sai Deepak highlights that during the course of arguments before the Division Bench, the Defendants had admitted that there were no pleadings on this issue in the written statement or the counter-claim. Rather, in the appeal proceedings, counsel for the Defendant, admitted the above fact. The counsel for Defendant took a categorical stand that the issue of revocation under Sections 64(1)(h) and (k) of the Act was purely legal, and further, made an unqualified statement that no further pleadings would be made or evidence be led on the afore-noted issue and the Single Judge would decide this issue as a pure question of law.

5. In this background, Mr. Sai Deepak states that since the Defendant voluntarily e