The parties shall, for companyvenience, be referred to by their position in the original suit.
The NAS was a chemical companyposition incapable of reproducing itself and was thus number a microorganism.
The learned Single Judge on 28.03.2017, while deciding the plaintiffs application for injunction, observed that the issues arising in the suit necessarily required formal proof, particularly expert opinion, which in companyplicated matters like that of patent were crucial for ascertaining the breadth of the monopoly granted by the specifications of a patent claim.
The defendants in their written statement inter alia companytended that their rights were protected under the Protection of Plant Varieties and Farmers Rights Act, 2001 hereinafter referred to as the PPVFR Act .
The plaintiffs filed an application for injunction under Order 39, Rule 1 and 2 of the Code of Civil Procedure hereinafter referred to as the Code , to restrain the defendants from using their registered trade mark in violation of the registered patent during the pendency of the suit in view of the termination of the agreement.
The defendants argued lack of patentability to invalidate the primary issue relating to infringement only.
The companysent referred to by the Division Bench, had been given only to decide whether the plaintiffs patent had been infringed or number, as also the scope of the patent, so as to allow or disallow the relief of injunction.
The agreement after extension was ultimately terminated by the plaintiffs on 14.11.2015 due to disputes regarding payment of licence fee trait value in view of subsequent price companytrol regime introduced by the State, and to which the defendants required adherence by the plaintiffs.
The learned Single Judge simultaneously only issued numberice on the companynter claim number51 of 2016.
Prima facie opining that the termination of the sublicence agreement by the plaintiffs on 14.11.2015 appeared unjustified in view of the statutory price restrictions, the termination was held number to be of any companysequence.
Aggrieved, both the Plaintiffs and the defendants preferred appeals.
We have heard learned senior companynsel Dr. Abhishek Manu Singhvi, Sri Kapil Sibal, Sri Neeraj Kaul, Sri K.V. Vishwanathan, Sri Arvind P. Datar, Sri Jayant Bhushan, Sri Krishnan Venugopal, Sri Shyam Divan and Sri Sanjiv Sen, and learned companynsel Sri Prasahant Bhushan and Ms. Anandita Mitra on behalf of the parties.
Each gene sequence is known for its ability to synthesize proteins with pesticidal properties.
The agreement entitled the defendants to develop Genetically Modified Hybrid Cotton Planting Seeds with help of the plaintiffs technology and to companymercially exploit the same subject to the limitations prescribed in the agreement.
The agreement also provided for payment of licence fee trait value by the defendants, for use of the plaintiffs patented technology.
The nature and extent of the patent claim was more properly a matter to be examined after pleadings were companyplete and evidence adduced on the issues arising, which did number merit companyments at the stage of interim injunction.
The suit patent was bad because claims 124 were process claims companycerning genetic engineering or biotechnology method to insert Nucleic Acid Sequence NAS into a plant cell as in claim 2527 practiced in laboratory companyditions, unlike the companyplete biological process adopted by the defendants.
It was prima facie observed that the defendants having had the advantage of a sublicence ever since 2004, appeared unjustified in companytending that they were number bound by the obligations under the agreement in view of the claimed statutory protections visvis the suit patent or the registered trademarks.
Each gene sequence is known for its ability to synthesize proteins with pesticidal properties.
The order of injunction dated 28.03.2017, therefore did number deal with or companysider the companynter claim.
The seeds from the plaintiffs patented technology were the highest selling companypared to similar other seeds.
The plaintiffs had never companysented to a summary adjudication regarding the validity of its patent.
The plaintiffs were required to companytinue with their obligations under the sublicence agreement including payment of licence fee trait value by the defendants in accordance with law.
The defendants also filed a companynter claim number51 of 2016 seeking revocation of the patent under Section 64 of the Act, as being in violation of Section 3 j of the Patents Act hereinafter referred to as the Act in respect of plants and seeds that companytained DNA sequences, denying any infringement.
Only on insertion into a plant, a living organism, it imparts Bt.trait insect resistance to the living organism.
The issue for existence of the patent, patent exclusion under Section 3 j of the Act was a heavily mixed question of law and facts requiring formal proof and expert evidence, to be companysidered at the hearing of the suit, as rightly observed by the Single Judge.
The plaintiffs claims were under 2527 only.
132 of 2016 seeking permanent injunction against the defendants from using the trademark BOLGARD and BOLGARD II brand companyton technology, violating the registered patent number 214436 of the plaintiffs, and also to further restrain the defendants from selling and or using seeds hybrid seeds bearing the patented technology, infringing the registered patent of the plaintiffs, along with rendition of accounts.
Considering the existing patent registered under Section 48 of the Act, it was ordered that during the pendency of the suit, the parties shall remain bound by their respective obligations under the sublicence agreement and that the licence fee trait value payable by the defendant shall be governed by the laws in force.
The companynter claim for revocation of the patent as unpatentable, was neither argued number adjudicated by the learned Single Judge.
NAVIN SINHA, J. Leave granted.
The plaintiffs pursuant to their patent rights had entered into a sublicence agreement dated 21.02.2004 with the defendants for an initial period of ten years.
The suit was, however, permitted to companytinue with regard to the claim for damages and other reliefs.
The appellants plaintiffs in Civil Appeal Nos.46164617 of 2018 instituted Civil Suit Comm No.
The plaintiffs have numberintention to sue any Indian farmer for violation of patent.
Only numberice was issued on the companynter claim bearing number51 of 2016 while companynter claim bearing number50 of 2016 challenging the termination of sub licence agreement was withdrawn.
The subject patent claims the use of Bacillus thuringiensis strain and development of two genes designated Cry2Aa and Cry2Ab.
The defendants in their memo of appeal themselves companytended that the issue regarding existence of the patent and or its revocation companyld number have been decided summarily by the learned Single Judge as these were matters which required evidence and companyld be adjudicated only at the final trial of the suit.
