SPARKS FLY AS TITANS CROSS PLUGS
“This post will attempt a more detailed look at the issues involved. There are two issues here:
i) Whether TVS infringes Bajaj’s patent?
ii) Whether Bajaj’s patent is valid in the first place?
As regards the first issue, one cannot arrive at a decision without possessing complete details of the technology used by TVS. However, according to TVS, the CC-VTi technology used in Flame has been developed by AVL, an Austria-based consulting firm and independent engine research institute which has to its credit several patents in automotive and automobile technologies. Autobuffs are likely to have heard Dr.Hans List who founded AVL. The CC-VTi technology could be based on AVL’s patent titled “Internal Combustion Engine comprising atleast Two Inlet Valves per Cylinder” (EP0444018).
Bajaj’s patent speaks of twin spark ignition technology and the TVS model uses 3 valves (2 inlet and one exhaust) in conjunction with 2 spark plugs. TVS has countered Bajaj’s allegation by citing the amendment of Bajaj’s Indian patent application on November 5, 2004, wherein its original claim of “An improved internal combustion engine for efficient burning of lean air fuel mixture used in engines working in four stroke principle, characterized in that said IC Engine comprising of…. ” was supposedly reduced to “An improved internal combustion engine for efficient burning of lean air fuel mixture used in engines working in four stroke principle, having two valves, characterized in that said IC Engine comprising of….,”(Business Line, 04-09-2007).
In other words, the purported novelty of Bajaj’s invention lies in the conjunctive use of twin spark plugs in a single cylinder with 2 valves, and not the mere use of twin spark plugs in the engine. This is because, a multi-cylinder multi-valve engine would obviously comprise of more than one spark plug, making Bajaj’s invention obvious. This also restricts the scope of the claim to use of twin spark plugs in a single cylinder with only two valves.
Since one is not in possession of Bajaj’s actual Indian patent document, one had to rely on its PCT Application PCT/IN03/000348, to corroborate TVS’s arguments that the scope of the patent is limited. As inferred from the press release by Bajaj dated 03-09-2007, the PCT application contains the same subject-matter as that of the Indian patent, through which Bajaj seeks to acquire protection in 5 countries, notably China.
However, this application does not indicate any such amendment as claimed by TVS, which could mean that such an amendment was made only to the Indian patent application. Funnily, the Indian patent office journal (29-07-2007) refers to the Indian patent as “An Improved Internal Combustion Engine Working on Four Stroke Principle” with the PCT Application sharing the same title whereas the TIFAC database refers to the Indian patent as “Internal Combustion Engine with Improved Combustion Characteristics”. The possible explanation to this could be that the title of the invention was modified subsequent to the grant of the patent.
TVS has further claimed that BAJAJ’s patent should be invalidated on grounds of obviousness, since use of twin spark plugs in a cylinder with two valves was well within prior art. Apart from the example of Honda cited by TVS, I believe that US Patent 5320075 titled “Internal Combustion Engine with Dual Ignition for Lean Burn” granted in 1994, may substantiate TVS’s stance. A few other US patents 4958616, 4177782, 4177783 too speak of twin spark plugs in a single cylinder with two valves.
Both DTSi and CC-VTi technologies are aimed at reducing exhaust emission and fuel consumption through fuller combustion of fuel. The written description provided by Bajaj’s PCT application itself suggests that there are various methods of improving combustion characteristics, some of which include improved ignition timing, improved combustion chamber design, improved valve timing and valve angles, etc.
Through its written description, Bajaj has explained in sufficient detail the disadvantage of using a single spark plug, as opposed to using twin spark plugs located preferably diametrically to each other (US patent 4177783 too contains a similar arrangement). This is because of better-controlled ignition timing in the latter and lesser time taken for the flame to travel during combustion. It has specifically listed the merits of use of twin spark plugs in a lean mixture (a mixture where the proportion of fuel in air is lesser when compared to rich mixture).
The novelty according to Bajaj, also lies in the use of a sleeve to protect the spark plug which is susceptible to exposure to lubricating oil. Such being the case, the emphasis and the scope of protection would be limited to use of twin spark plugs in a single cylinder with two valves, one plug protected by a sleeve. It is interesting to note that of the four patents cited in the International Search Report in the PCT application, 3 relate to inventions only on sleeve, and only one speaks of use of twin spark plugs.
CC-VTi, on the other hand, predominantly is about even combustion of fuel by altering the air-fuel mixture received by the 2 intake ports or valves. Usually, a cylinder has one intake and one exhaust valve. Earlier, the charge (air-fuel mixture) was either subjected to swirl or a tumble depending on the load conditions and speed. The stirred or circumferential motion of charge in the cylinder is called swirl, whereas a motion directed towards the axis of the cylinder is called tumble.
The former is used for a lean mixture and the latter is used for richer mixtures at high speeds. Several patents on the use of these phenomena exist. TVS’s technology combines both these phenomena with 2 intake ports, providing swirl and tumble simultaneously, making the design compatible for both lean and rich mixtures. The degree of swirl would be greater for a lean mixture and the degree of tumble for rich mixture. This design ensures even combustion of fuel in all corners of the cylinder and is further marked by the use of twin spark plugs, which as explained earlier, provides fuller combustion.
This shows that the points of emphases in the designs of both these technologies differ considerably, notwithstanding the use of twin spark plugs in both instances. It was reported that following the victory in a lawsuit against Sri Lankan importer Ranatunga Motor and Chinese manufacturer Taian Chiran Machinery for imitating the Pulsar 180, BAJAJ gained above 9 per cent over its previous close of Rs 2,825.45 to close at Rs 3,080.30. Over 3.75 lakh shares changed hands on the counter (Business Standard, 08-02-2007). If TVS’s contention of invalidity of Bajaj patent is upheld, one can only fathom as to what such a loss could mean for Bajaj, both financially and for its reputation. However, it is surprising that TVS, being a competitor, did not oppose the grant of the patent to Bajaj earlier.
shamnad
will it be possible to keep track all patent applications/grants either for pre/post grant oppositions in the light point 1 of your petition
which is “Critical components of a patent application, such as the claims and the complete specification are not available”.i think thats why TVS couldnot oppose it.and another question comes to my mind disclosure being the tradeoff in return to the monopoly of a patent ,can there be certainity for indian industry to carry out business with out infringing when the complete patent documents are not availble.both the bilcare and tvs-bajaj saga’s give me a negative answer.finally i hope TVS attorneys will read saideepak’s post!
Hello Sir,
This is Sai Deepak here. I thank you for your interest in the article. Firstly, i should say i concur with you on the point that non-avaialability of patent documents or atleast critical parts makes it dificult for some kind of a competitive analysis among competitors in India. However, i am not sure if TVS can take this excuse. This is because, the moment Bajaj came up with this technology and also announced that it would patent the technology, the least that TVS could have done after the grant was to ask Chennai Patent office for a copy of the patent. With that in hand and databases such as USPTO n EPO already available, it should not have been a tough task for TVS to find out similar technologies. Since they have not done, one believes that there could be possibly more to the case than meets the eye and it may ot be a mere case of non-availability or asymmetry of information.
Hi Ppl,
There has been a typo error by oversight. In para 5 where there is a reference to Indian patent office journal, the date should have been 29-07-2005 instead of 29-07-2007. I beleive this correction would seem banal to some since if the patent was granted in 2005, one would not expect the post-grant publication under s.43(2) in 2007.
hi
This is ankush . After going through this article when i search bajaj application at WIPO website, i was amazed to find that Bajaj has a negative ISA report for its application PCT/IN03/000348.
So I have a request , if you have copy of bajaj patent 195904…as indian PTO website did not make live patents online, update it on spicy ip blog or forward me at [email protected]
Hi Ankush,
Its good to know that you took time out to go through the PCT application. This is what struck me when i went through the ISA report that when there are so many patents available on the dual ignition technology, how is it that the search report makes a mention of just one patent on the technology? As regards the copy of the Indian patent, unfortunately i too havent been able to lay my hands on it or else my article would have been much more comprehensive. If and when i get it, rest assured, i shall forward it to you.
What if a maker made provisions for a 2nd plug (just the threaded hole with a dummy and a power take off) and did not sell bikes with two plugs themselves ? Such that customer is free to modify if he wishes ?
Hi Pk,
Thats a very good question and going by the nature of the query, i assume you are a techie:) This was a possibility i had earlier discussed with a brilliant colleague of mine and the conclusion we arrived at is as follows- the maker who makes such a provision for the second plug would be guilty of wilful contributory infringement and in this case i would go a step further to state that it would be substantial infringement of the patent. The customer who finally assembles the two would be guilty of literal infringement assuming that the positioning of the spark plug is identical to what has been claimed in the patent. Following are the reasons for reaching such a conclusion:
1. The patent claims the a two-valve engine of cpapcity 75-220cc which has 2 spark plugs. This means it essentially claims a feature in the engine which allows for the use of a second spark plug, because there is nothing inventive in the spark plug itself but for its use along with another spark plug in the engine. Such being the case, manufacture, sale, importation or offer for sale of such an engine would amount to infringement
2. Even if one were to argue that the patent claims an engine with the aprk plug and since the hypotheical maker has offered for sale an engine sans the second spark plug, the maker would still be guilty of contributory infringement for he has wilfully led consumers to infringe the patent. Reason? All that the customer has to do is to insert the new spark plug, which anyone with decent “motor” skills can do.
3. Under s.48, if the subject of the patent is a product, the act of “making” the product too is a right of the patentee and since here the hypothetical maker has almost “made” the product, it would constitute infringement.
If there is a counter to this, i would be delighted to hear from you.
Hi Pk,(lot of typo errors in the earlier version)
Thats a very good question and going by the nature of the query, i assume you are a techie:) This was a possibility i had earlier discussed with a brilliant colleague of mine and the conclusion we arrived at is as follows- the maker who makes such a provision for the second plug would be guilty of wilful contributory infringement and in this case i would go a step further to state that it would be substantial infringement of the patent. The customer who finally assembles the two would be guilty of literal infringement assuming that the positioning of the spark plug is identical to what has been claimed in the patent. Following are the reasons for reaching such a conclusion:
1. The patent claims the use a two-valve engine of capacity 75-220cc which has 2 spark plugs. This means it essentially claims a feature in the engine which allows for the use of a second spark plug, because there is nothing inventive in the spark plug itself but for its use along with another spark plug in the engine. Such being the case, manufacture, sale, importation or offer for sale of such an engine would amount to infringement
2. Even if one were to argue that the patent claims an engine with the spark plug and since the hypotheical maker has offered for sale an engine sans the second spark plug, the maker would still be guilty of contributory infringement for he has wilfully led consumers to infringe the patent. Reason? All that the customer has to do is to insert the new spark plug, which anyone with decent “motor” skills can do.
3. Under s.48, if the subject of the patent is a product, the act of “making” the product too is a right of the patentee and since here the hypothetical maker has almost “made” the product, it would constitute infringement.
If there is a counter to this, i would be delighted to hear from you.
Wishes,
J.Sai Deepak.
This post of yours makes Indian judicial history. Congrats.
HI,
I would like to clarify some technicalities here. I have not gone through the ISR issued for the PCT application of Bajaj. However, just to explain some practical issues, the citations in the ISR reject the claims on the basis of obviousness. Typically, it appropriate to cite 2-3 documents which makes the whole invention obvious, i.e., pne closeest prior art and the others disclosing the other features of the claim. If too many prior art are cited the case becomes week as this may lead the invention to be non-obvious as the Applicant may come forward with arguments that there were many options available and I could have used any one of them option. However, the option used by me provides efficient result and is very efficient.
Setting aside the validity issue of the Bajaj’s patent, the important issue here is the claim construction. Claim 1 of Bajaj application specifies cylinder having two valves. Technically, it is know that if an cylinder comprises two valves one should be for ingress and the other for egress. Now as the claim is open ended the cylinder may comprise two or more values. Thus, what I feel here is that the claim is to be construed with respect to the specification. For instance, the claims granted by the Indian Patent Office have been narrowed woth respect to the claims as filed with the PCT application. Claim 1 as granted by the Indian patent office, includes two limitations, such as “having two valves per cylinder” and “diameter of cylinder bore ranges between 45 mm and 70 mm”. The objective of Bajaj to include these limitations should be figured out from the prosection history. I am sure bajaj must have made some arguments and should have explained how their claim is distinct with respect to Honda’s patent (US 4534322). I think infringement must be determined by construing claims by considering all these.
The second issue what I wanted to point out is about invalidation of the Bajaj patent by TVS. If the ISR was negative, as there is a X document cited, TVS should contentd to invalidate the claims on the basis of the same.
To be pricise I am interested in pointing out that just the mere difference in technologies cannot be sufficient to prove non-infringement. If all the elements of the claims have been applied to the product, the product infringes the claim.
Suggestions are welcome,
Krishna Singhania
[email protected]