Patent

SpicyIP Tidbit: Madras High Court embarrassed over failure to reimburse ‘Scientific Advisors’ appointed under S. 115 of the Patents Act


In the recent case of Vittal Mallya Scientific Research Foundation v. Indfrag Ltd. the Madras High Court was highly embarrased when the Plaintiff’s counsel bickered with the scientific advisor’s (IIT Madras) over the question of payment towards the cost of carrying out certain tests that were so required to be carried out as per the Court’s directions.

The decision of the Madras High Court can be accessed at the website of India Kanoon over here.

The present suit had been filed by the Plaintiffs to restrain the Defendants from violating 6 of their process patents bearing numbers: 182487, No.182488, 182489, 182490, 182810 and 183849. Pending the suit the parties had moved applications under Section 115 of the Patents Act to have the Court appoint scientific advisors. After a series of delays the Court finally appointed IIT Madras as the Scientific Advisor with a mandate “to examine/analyse the products of the plaintiff and the defendant and submit a report to the court as to the nature of the manufacturing process involved and whether the defendant’s claim that it was manufacturing the product using a different process from the six patented process of the plaintiff.”

The cost of the entire process was to be borne equally by both parties.

However when IIT Madras contacted the Plaintiffs counsel requesting them to pay up for the costs of certain tests the counsel declined to do so by citing Section 115(2) which requires that “such renumeration shall be defrayed out of moneys provided by Parliament by law for the purpose”. Clearly if the Plaintiff’s counsel wanted to make sure that the ‘moneys’ were provided by Parliament, he should have objected to the Court at the right time instead of bickering at a later stage with the Court appointed scientific advisors. Having said that I have to concede that I’m curious as to what exactly is the ‘moneys provided by Parliament’? The Act and the Rules are silent on this aspect. Is it supposed to refer to the Consolidated Fund of India, out of which the salaries of Judges are defrayed?

When IIT Madras eventually sent the Report to the High Court it also made it a point to send along with it all the correspondence with the Plaintiff’s counsel. On reading the correspondence the High Court was livid with the Plaintiff’s counsel for not agreeing to share the costs although it was required to do so by the previous Order. The High Court ordered the Plaintiffs to pay up, warning them that the State was not going to pay for private litigation and at the same time dismissed their applications to issue supplementary instructions to IIT Madras to carry out further tests.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

2 comments.

  1. AvatarRuchica Goyal

    Blogger Ruchica Goyal said…

    I agree with you prashant upon the fact that plantiff’s counsel should have cleared the matter before hand and both the parties were aware of the court’s decision regarding the cost.
    Such cases on one hand may help to clear the grey areas of patent act, but they are more of a nuisance for our judicial system.

    Reply

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