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De Penning v/s Coramandal Indag Products

Written by: Nikhil Danak - 3rd year student, Gujarat National Law School, Gandhinagar
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Monsanto Company by their Patent Agent, De Penning and De Penning versus Coramandal Indag Products (P) Ltd

The present suit was filed by Monsanto Company of Missouri of United States of America against an Indian Private Limited Company for alleged infringement of two patents of theirs.

The Plaintiffs was the patentee of inventions entitled “Phytotocix Compositions” and “Grass Selective Herbicide Compositions” duly patented. The Plaintiffs expressly stated that, “The active ingredient mentioned in the claim was called Butachlor”.

Later it came to the notice f the Plaintiffs that the Defendant was trying to market a formulation of Butachlor, covered by the said patents. They therefore wrote to the defendant drawing their attention to the existence of the patents in their favour. In the second week of May, 1981 the Plaintiffs discovered that the Defendant was actually marketing the formulation of Butachlor covered by the patents of the first plaintiff.

When the formulations of the Defendants substance were sent to the Shri Ram Institute for analysis, they were said to contain the chemical Butachlor Chemical Formula so patented by the Plaintiffs. Thus the Plaintiff sued for an injunction to restrain the defendant from infringing their patents, by the manufacture or sale of the infringing formulations.

Contention of the Plaintiff:

“Machete” was the brand name under which the Plaintiff claimed to have produced Butachlor. They claimed that there could be a number of companies all over the world manufacturing Butachlor but they were not aware of it. They contended that even if their company had not patented Butachlor, it had patented, but they had patented a process for making a Butachlor emulsifiable concentrate to be used as a weed killer for Rice. They claimed secrecy with regards to the manufacturing of the formulation, and that this secrecy is confined to their active ingredient Butachlor.

Although they claimed that their patents had been infringed they were not able to explain which part of their claim in both the respective patents were infringed.

Contentions of the Defendant:

The defendant claimed that he was entitled to the Patent as under section 107 of the Patent act, the Plaintiff’s Patent was liable to be revoked section 64(1) (a) (b), (d), (e), (f), (g), (h), (i). The Defendant thus made a counter claim seeking revocation of the Plaintiff’s Patents.

Observations of the Court

Butachlor was discovered even prior to 1968 as an Herbicide possessing the property of non toxic effect on rice. This formula was published in the report of the International Rice Research Institute for the year 1969. No one patented the invention Butachlor and hence it becomes the property of the public. Even the emulsification process that the Plaintiff claims to have invented is one of common knowledge. Such emulsification is a well known process and is no one’s discovery Thus there can be no secrecy attached to Butachlor. Under section 61(d) of the act, a patent may be revoked on the ground that the subject of any claim of the complete specification is not an invention within the meaning of the act.

Section 64(1)(f) states that “a patent may be revoked if the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the date of the claim.

It is clear that Butachlor was publicly known before the Patent was granted to the Plaintiff. Its formula and use had already been made known to the public by the report of the international rice research institute in 1968. No one claimed nay right or patent in Butachlor. Thus there was no secret about the active agent Butachlor as claimed by the Plaintiffs. Emulsification was a common process by which any Herbicide could be used. Thus the ingredients, the active ingredient, the solvent and the emulsifier, were well known, the product was known and the use was known. Hence the patent is liable to be revoked. The appeal was dismissed.

The author would like to acknowledge the immense support and guidance by Mr. Rama Sarma, co-chair and partner, IP Department, Kochhar & Co, Chennai.

The author can be reached at: / Print This Article

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