LEGAL NEWS 29.11.2008

Three-fold salary raise for judges
http://www.hindu.com/2008/11/29/stories/2008112959131300.htm
Legal Correspondent
New Delhi: The Union Cabinet on Thursday decided to increase the monthly salaries of judges of the Supreme Court and High Courts three-fold.
The revision has been necessitated by the increase in the salaries of Central government employees on acceptance of the Sixth Central Pay Commission recommendations.
Now the Chief Justice of India (CJI) will get Rs.1, 00,000 plus Dearness Allowance thereon. At present his salary is Rs. 33,000. The other judges of the Supreme Court and the Chief Justices of High Courts will draw Rs. 90,000 (now Rs. 30,000) plus DA. High Court judges will get Rs. 80,000 (Rs. 26,000) plus DA.
A committee, which went into the issue, recommended Rs. 1.10 lakh for the CJI; Rs. 1 lakh for a Supreme Court judge and the Chief Justices of High Courts and Rs. 90,000 for a High Court judge. However, the government decided to reduce the recommended hike by Rs. 10,000. The revised pay will be effective from January 1, 2006. Forty per cent of salary arrears will be given this financial year and 60 per cent in the next financial year.
Effective from September 1, 2008, the limit of both sumptuary and furnishing allowances has been doubled for all Supreme Court and High Court judges.
A government order to this effect will be issued after an amendment in the relevant legislation, says an official release.



Sixth Pay Commission: Cabinet nod for salary hike of judges
http://www.marasaw.com/2008/11/28/sixth-pay-commission-cabinet-nod-for-salary-hike-of-judges/
Friday, November 28, 2008 5:45 pm posted by Admin
New Delhi, Fri, 28 Nov 2008 NI Wire
Giving nod to the proposed salary hike of the members of higher judiciary in view of huge pay hike for the central government employees as per the Sixth Pay Commission, the government has decided to increase salaries of the judges of Supreme Court and High Courts.
The Chief Justice of India will now get a monthly salary of Rs 1 lakh plus dearness allowance (DA), while judges of Supreme Court and chief justices of High Courts will draw a salary of Rs 90,000 besides DA.
The judges of High Court will get a salary of Rs 80,000 pm plus DA.
The revised pay scale will be effective from January 01, 2006. The arrears will be paid in two ways: 40% in the current financial year and the remaining 60% in the next financial year.
This would cost the government’s exchequer, as the Law Ministry has estimated, an additional expenditure of Rs 46 crore, which includes Rs 4 crore recurring expenditure per annum and Rs 42 crore as arrears.
The government has also decided to double the existing limit of both sumptuary allowance and furnishing allowance for all the Supreme Court and High Court Judges. This will be effective from September 01, 2008.
Since the higher judiciary’s emoluments can only be revised through an Act of Parliament, a bill will soon be introduced in Parliament.
K G Balakrishnan, in a letter to the ministry in July, had sought a hike of two to three times the present monthly salaries of judges of the higher judiciary. The proposal had been under consideration by the Law Ministry.
The CJI, at present, gets a monthly salary of Rs 33,000, which he had suggested raising to Rs 1.1 lakh. And for other apex court judges and chief justices of High Courts, the CJI had suggested a monthly salary of Rs 1 lakh. While for the High Court judges, a monthly salary of Rs 90,000 had been proposed.
Source: newstrackindia.com



Tainted men can’t be made cops: HC
http://timesofindia.indiatimes.com/Chennai/Tainted_men_cant_be_made_cops_HC/articleshow/3771391.cms
29 Nov 2008, 0329 hrs IST, TNN
CHENNAI: Two brothers, who once faced criminal cases but were acquitted later, failed to get the Madras high court’s nod to become sub-inspectors of police. Holding that the state was entitled to apply rigorous standards for selection of personnel for uniformed services, Justice K Chandru refused to direct the government to include the brothers in the 2006 selection list. G Prabhu and his brother Ganesan were involved in a criminal offence under the provisions of the SC/ST Prevention of Atrocities Act in 2003. Though they were acquitted in December 2007, the acquittal was not “honourable.” That is, they were exonerated due to benefit of doubt, which is not considered a clean acquittal. Meanwhile, the brothers had been provisionally selected as sub-inspectors of police. However, not satisfied with their antecedents, their applications were rejected by the director-general of police. After the rejection of the applications, the brothers filed a petition before the Madurai Bench of the Madras high court, and obtained a ruling that their acquittal was honourable. The single judge had even expunged the term benefit of doubt from the sessions court’s order. The present petition was filed seeking inclusion of their names in the 2006 selection list, as otherwise they would become over-aged to apply for the posts in the future. Justice Chandru, declining to accede to their “ingenious submissions,” said that the brothers had moved the court for expunging the remarks only after their applications were rejected by the DGP. Pointing out that the Code of Criminal Procedure did not distinguish between an honourable acquittal and acquittal due to benefit of doubt, the judge doubted whether the high court had any powers to expunge remarks and modify a trial court’s orders. Pointing out that the brothers faced a grave charge of caste discrimination, Justice Chandru said, “Their conduct in getting involved in such a criminal case and thereafter to get entry into the police force by ingenious arguments cannot be countenanced by this court.”





Jharkhand HC reserves order on Raj plea
http://timesofindia.indiatimes.com/India/Jharkhand_HC_reserves_order_on_Raj_plea/articleshow/3770667.cms
29 Nov 2008, 0005 hrs IST, TNN
RANCHI: The Jharkhand High Court on Friday reserved its order on Maharashtra Navnirman Sena chief Raj Thackeray's petition seeking exemption from physical appearance in Jharkhand courts in cases filed against him for his barbs against north-Indians. The petition has also sought transfer of all the cases from the state to Maharashtra. Petitioner's counsel Y B Giri submitted before the court that under Section 317 of the CrPC, an accused can be exempted from physical appearance if the judge or magistrate is satisfied that trials or proceedings can be held without his presence. Similar cases are pending in Mumbai, he said and added the accused cannot be tried in every district of the country for the same offence. Appearing for the state, advocate general P K Prasad, however, submitted that the cases filed in Maharashtra and those filed in Jharkhand are not similar. The single bench of Justice DK Sinha reserved its order after hearing the arguments. Meanwhile, a petition was filed in the Jamshedpur court of judge Anil Kumar on Friday through which Thackeray sought deferment of hearing in a case against him till December 5 as his lawyers, based in Delhi and Mumbai, were busy with another case of Thackeray pending before the high court. The petition was strongly opposed by advocate Ravindra Nath appearing on behalf of the complainant. The Jamshedpur court fixed December 6 as the next date of hearing.




HC ruling may open new window to examinees
http://timesofindia.indiatimes.com/Cities/Patna/HC_ruling_may_open_new_window_to_examinees/articleshow/3770253.cms
29 Nov 2008, 0255 hrs IST, Sanjeev Kumar Verma, TNN
PATNA: A recent decision of Patna High Court (HC) may open a new window of information to the examinees appearing in examinations conducted by the Bihar Public Service Commission (BPSC) for various state government jobs. The court has upheld an earlier decision of the State Information Commission (SIC), which had directed the BPSC to provide question wise marks obtained by one Pawan Kumar Jha, who appeared in 46th combined competitive examination conducted by it (BPSC). Jha, not convinced by the marks awarded to him, had filed an application with the BPSC in February 2007, seeking information about marks secured in some of the papers. Having failed to get the information, he moved the SIC in June 2007 using Right to Information (RTI) Act, 2005. The BPSC in its deposition before the SIC took a stand that it was not in a position to furnish question wise marks as it had never made any provision in this regard. The commission also cited provisions of its rules and terms of advertisement justifying its stand. The matter, thereafter, came to be heard before the SIC in November, 2007, and an order was passed directing the BPSC to provide information within four weeks of passing the order to Jha. The BPSC then filed a review petition in the SIC which was heard in January, 2008 and was dismissed with a direction to take a follow up action to earlier directive of SIC. The BPSC then moved the Patna HC. The court in its judgment, delivered recently, observed that it had difficulty in accepting the BPSC's stand that it was was not duty bound to furnish information sought by the examinee. It also observed that the SIC had not transgressed its power while directing the BPSC to furnish information. The court also observed that the BPSC had no option, but to gear up to new challenges and demand of an empowered citizen under specially created enactment by the Parliament. "Information and knowledge is critical for realising human aspiration. A knowledgeable society can only assert themselves and demand quality of life and assertion of rights -- fundamental or otherwise -- under the new era," it further observed. The court order notwithstanding, the BPSC is still undecided about its future course of action. "We are studying the copy of the judgment after which legal opinion would be taken whether the information should be given to the examinee or should a special leave petition be filed," said BPSC chairman A K Choudhary.



HC to 'Sorry Bhai' makers: Keep full revenue records
http://timesofindia.indiatimes.com/Delhi/HC_to_Sorry_Bhai_makers_Keep_full_revenue_records/articleshow/3770732.cms
29 Nov 2008, 0000 hrs IST, TNN
NEW DELHI: While lifting the stay on release of the movie Sorry Bhai, Delhi High Court on Friday asked producers of the movie to maintain full accounts of revenue generated by the film. A division bench of Justice Mukul Mudgal and Justice Manmohan asked Gaurav Dayal and producers of the movie to "maintain full accounts of the movie, the sale of the audio and video cassettes and CDs and revenue generated by the film. Such accounts shall be filed in this court from time to time." This, HC said, would help it in awarding damages later, if it came to the conclusion that Rabbi Shergill, the singer who moved HC against the release, deserved to be compensated for loss of reputation. In his suit, Shergill alleged that one of the songs in the movie was lifted from his album and, therefore, sought compensation, claiming if the movie was released, he would suffer losses. While the single judge agreed with Shergill's claim that both songs were identical and stayed the release, a division bench lifted the stay. Both judges also found it strange that even though music of Sorry Bhai had been released in October this year, Shergill moved court at such a late stage, just a couple of days prior to release of the film. "We are of the view that the main constituent of the song is the melody and some similarity in the rhythm of the accompanying acoustic guitar can't be sufficient to infer that the music director has plagiarized Shergill's song. In any case, even the lyrics are completely different. So, we are, prima facie, of the opinion that the movie song is not a reproduction," HC observed while allowing the movie release to go ahead as per schedule. Like the single judge, the division bench judges also heard the song in the chamber to conclude that the only similarity between the two songs Jalte Hain from the movie and Ballo from Shergill's album was "in the use of guitar". This apart, HC said, "there is some difference in the use of accompanying sounds, comprising other instruments."





Kerala HC upholds CJM order to grant 14 days custody of the accused http://www.zeenews.com/states/2008-11-28/487057news.html
Kochi, Nov 28: The Kerala High Court on Friday upheld the order of Chief Judicial Magistrate, Ernakulam to grant 14 days CBI custody of the three accused in the Sister Abhaya murder case. Dismissing the petition of the accused, Justice R Basant however observed that there is a violation of procedure on the part of CBI in requesting for custody. The Investigating Officer (IO) along with the remand application failed to produce the extract of case diaries and details of materials collected, he said. The Court also rejected the plea of custodial torture and said that the IO is justified in asking for granting custody for 14 days on the basis of statement that the arrested persons are not cooperating with the investigation. Abhaya's body was found in the well of St Pius Convent at Kottayam in 1992. Fr Thomas Kottur and Jose Puthrukkayil and Sister Sephy were arrested on November 19 in connection with the investigations in the case. Bureau Report



PM calls all-party meet; discussion on anti-terror law likely
http://timesofindia.indiatimes.com/India/PM_calls_all-party_meet_discussion_on_anti-terror_law_likely/articleshow/3773733.cms
29 Nov 2008, 1923 hrs IST
NEW DELHI: After the shocking Mumbai terror strikes, Prime Minister Manmohan Singh has convened an all-party meeting on Sunday in an apparent move to evolve a consensus on a tougher anti-terror law and a federal agency. The refrain in the Congress and some of its allies is that there was an urgent need for a unanimity among political parties to take terrorism head-on through appropriate laws and structures. Singh had already emphasised the immediate need to set up a Federal Investigation Agency to go after terrorist crimes like the one in Mumbai and ensure that the guilty are brought to book. The Prime Minister had asserted that "the strongest possible measures" would be taken in the fight against terror including the use of the National Security Act (NSA). While the NSA would be invoked to deal with situations of this kind, the existing laws would be tightened to ensure that there were no loopholes available to terrorists to escape the clutches of the law, he had said. The meeting has come at a time when the opposition was targeting the Congress-led coalition at the Centre for not being serious about tackling terror. "The government's non-serious approach is reinforced by reports that the Mumbai attackers arrived in the city by the sea route," Senior BJP leader L K Advani has said as his party has gone to town attacking the Congress for being "soft" on terror.



Lt-Col Purohit remanded to judicial custody till Dec 12
http://timesofindia.indiatimes.com/India/Lt-Col_Purohit_remanded_to_judicial_custody_till_Dec_12/articleshow/3773613.cms
29 Nov 2008, 1835 hrs IST, PTI
NASHIK: A court here on Saturday extended the judicial custody of Lt-Col Prasad Purohit, accused in the Malegaon blast case, till December 12 for aiding investigation in another case regarding obtaining of a fake arms license. Shirish Datey, a Pune resident, had filed a complaint here on November 16 accusing Purohit of using fake documents that showed him as a resident of the military camp in Deolali, to obtain an arms license for him. Public Prosecutor Jyoti Pawar demanded extension of police custody of Purohit to investigate the fake arms license case. Purohit's counsel Avinash Bhide argued that his client was in police custody since September 29 and the court should reject the demand for extension of his custody. However, local court judge V V Joshi, remanded Purohit to 14-days judicial custody. Purohit is among the eleven persons arrested so far for their alleged involvement in the September 29 Malegaon blast in which six persons were killed and over 100 injured.




PIL seeking ban on demolition of Parivartan Chowk
http://timesofindia.indiatimes.com/Lucknow/PIL_seeking_ban_on_demolition_of_Parivartan_Chowk/articleshow/3770806.cms
29 Nov 2008, 0413 hrs IST, TNN
LUCKNOW: The demolition drive of the Mayawati government is still on. This time the target is Parivartan Chowk. The Municipal Corporation and Public Works Department (PWD) are out to `improve' the Chowk, despite objection by the Archaeological Survey of India (ASI). A city resident rushed his Public Interest Litigation (PIL) to the high court on Friday seeking ban on demolition and construction of the Chowk. Vijay Pathak, a dweller of Aliganj, has challenged the inaction of ASI in the Act of ongoing demolition and re-construction of Parivartan Chowk, which is only across the road from the mausoleums of Nazwab Mushir Zaidi and Nawab Saadat Ali Khan as well as being adjacent to Begum Hazrat Mahal Park. According to the petition, no construction can be raised in the periphery of the ancient monuments, under the Ancient Monuments Protection Act. The said construction is being done against the law in a heritage zone and an area where raising any new construction is prohibited. The construction can only be done after the prior approval of ASI. The petitioner urged in the petition that although the ASI had refused to grant permission for razing down the Chowk yet the state government is continuing demolition and construction work on priority basis. The petitioner also said that when the Chowk was being made in 1995, then also the ASI had raised objections but to no avail. According to the whimsical government plan, a wall of Mirjapuri Chunar will be erected to keep the Chowk in sync with the Kanshiram Memorial, Ambedkar Memorial and the Ramabai Ambedkar Maidan, said the petitioner. The petitioner also cited a previous high court order restraining the government from erecting huge constructions on the traffic island/turnaround as it obstructs the view of the driver which ultimately may cause accidents but violating the said order, the area has been covered turning it into a blind turn he added. The petitioner condemned the inaction of ASI, saying that it is sitting idle and not exercising its power because of which the public in general is suffering. The PIL came up for hearing on Friday before the bench of Justices Pradeep Kant and Shabihul Hasnain. Since the high court lawyers are on strike as a mark of protest against the Mumbai blasts, it will be heard on Monday.



A Googly From the Madras High Court
http://spicyipindia.blogspot.com/2008/11/googly-from-madras-high-court.html
Saturday, November 29, 2008
Parties, Forum and DecisionPlaintiff/Patentee/Registered Proprietor of the Design: A.R.SafiullahDefendants: Daniel, Indira Daniel, Rajapudeen and MariappanForum: High Court of MadrasDecision: Ad interim injunction against the defendants for design infringement upheld, non-grant of ad interim injunction against defendants for patent infringement confirmedDetails of the Patent and the Technology InvolvedTitle of the Patent: Food-grade laminated paper, method and apparatus for manufacturing the laminated paperPatentee: A.R.SafiullahPatent Number: 198079 (in para 3 of the judgment, it states 189079)Date of Filing: 29th August, 2000 (the judgment inconsistently records it as 29th October 2000 in certain portions)Date of Grant: 20th January, 2006

From what I could glean from the judgment, it appears that the patent relates to a process for manufacturing laminated paper in the shape of a banana leaf coated with food-grade green colour. Not only does this paper resemble a natural banana leaf, it smells like one too, according to the patentee. Further, he claims that the product is devoid of defects associated with natural banana leaves; what exactly are its features which make it better than a natural banana leaf is not elaborated upon in the judgment. As to the question if this patent claims a product as well, the Court held it didn’t.Facts of the CaseThe plaintiff claims that he first got a design registered for artificial paper in the shape of a banana leaf which design was later infringed by the fourth defendant. After a successful action against the fourth defendant, the plaintiff applied for a patent on a process for manufacture of food-grade laminated paper in the shape of a banana leaf and allegedly this patent was for the product as well.During the course of an enquiry pursuant to an action against an infringer in Kerala, it was revealed that the third and fourth defendants had colluded to imitate the plaintiff’s patented process. Accordingly, the plaintiff filed an infringement suit under the Patents Act; in addition to this, he sought to enjoin the defendants from passing off the scheme and layout of his product (in short, trade dress) and also from infringing his registered design. Applications for temporary injunctions during the pendency of the suit for all the aforementioned causes were prayed for. It must be pointed out here that the prayer for common law relief was not pleaded for in the plaint or the affidavits submitted to the Court.The case was transferred to a Single Judge of the High Court under s.104A of the Patents Act, 1970 after a counterclaim of invalidity was filed by the defendants. The Single Judge granted an ad interim injunction against the defendants preventing them from infringing the design and denied grant of the same for the patent. Both parties filed interlocutory appeals asking for part reversal of the order.Issues1. Is the Court empowered to grant ad interim injunctions when it is expressly not provided for under the Patents Act, 1970?2. If a common law relief has not been pleaded for in the plaint, can the Court grant such a relief on its own?3. Is the order on ad interim injunctions passed by the Single Judge valid?DiscussionI thought only Salman Rushdie was capable of authoring a literary roller coaster which usually leaves the reader in a daze and unsure of where the head or tail is; I guess this judgment from the Madras High Court could teach him a few things in weaving a periphrastic and soporific yarn, replete with errors, with not much value addition at the end of it all.The instant case involves design and patent infringement issues besides passing off of trade dress, which could and should have been addressed with better coherence. However, the judgment keeps veering off course like a whimsical Ganges tributary, making it difficult to understand the ratio decidendi. I shall try to make it lucid for the readers.A. Infringement of the Design and Passing offThe question which needs to be answered here first of all is if the principles for the grant of a temporary injunction have been satisfied. These general equitable principles have been dealt with in several posts on SpicyIP (most notably Mihir’s post, which is recommended reading for it questions certain fundamental aspects of grant of interim injunctions). In applications for an interlocutory injunction, the Court needs to ask if:
1. the plaintiff has shown that there is a serious question to be tried as to his entitlement to relief;2. that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy; and3. that the balance of convenience favours the grant of an injunction.These are the organising principles which are to be applied having regard to the nature and circumstances of the case under which issues of justice and convenience are addressed. But this judgment doesn’t reflect the application of these principles, atleast to the issues of design infringement and passing off.Paras 37 and 43 of the judgment are the only ones which remotely touch the issue of design infringement with no articulation on substantive issues which have a bearing on the grant of an ad interim injunction. And these two paras too somehow manage to get squeezed in the rest of the judgment which discusses patent infringement at length, albeit with scant clarity.The plaintiff claims to have a registered design; mysteriously enough, nowhere are the details of the registration mentioned in the judgement and from the looks of it, no evidence to this effect was produced before the Court. The Court seems to have proceeded with the assumption that a validly registered design exists in the name of the plaintiff.The supposedly registered design was granted for the design of a banana leaf incorporated in a laminated paper. The defendants pointed out that the same design has previously been incorporated using silver, stainless steel, glass and ceramic and there is nothing novel, new or original about the design. This should have rightly led the Court to discuss, in brief, the novelty and originality of the impugned design.Here’s my tuppence worth on the originality of the design. Under the Designs Act, 2000, a registrable design must be “new” or “original”; new refers to a situation where the design is wholly new in itself and “original” refers to application to a new subject-matter (A similar provision exists in the Registered Designs Act 1949 of the UK, where the “or” has been interpreted as being used in a conjunctive sense). In the instant case, obviously the design is not new, but does it qualify to be original?The originality contemplated in the Designs Act requires that the design originate from a person by the exercise of his intellectual activity in rendering applicable a particular shape or a pattern to a particular object (or “article” as the Act calls it). Such application should not have occurred to anyone before. It bears out while in a “new” design, it is the design which takes precedence, in an “original” design, the subject-matter of application is the centre of attention.This probably means that for a design to be original, its application to a particular subject-matter must stand out and in a sense, it must be unexpected. This is because originality is judged with reference to the kind of article for which it is registered, having regard to the general character or use of the article. Simply put, if one were to incorporate the design of Qutub Minar to the top of a pencil, its individuality is discernible. On the other hand, if the same were to be applied to a clock tower, it’s easier to draw parallels between the two which diminishes (or probably extinguishes) any claim of originality.Another important aspect which did not recieve its due is sourcing a design from nature. Merely because a design has been sourced from nature, it does not fail the test of originality, but where the subject of the design is well-known, narrower is the scope of protection since grant of monopoly to such a design could be unfair to the rest of the competitors or even the general public. Accordingly, application of the design of a banana leaf and that too for an article which is meant to serve and store food isn’t exactly original given that it has been applied to articles of a similar nature and use before.So notwithstanding the factum of registration (which is in doubt), aspersions on originality do make it difficult for the plaintiff to establish a prima facie case.The plaintiff pointed out that he has earned about Rs.3 lakhs (this again in para 46 is mentioned as 3 Crores) from the product which according to him tilts the balance of convenience in his favour. Had this been a pure patent infringement case, such an argument would have found merit; but unfortunately for the plaintiff he has raised both design and patent issues in the same suit. This is relevant because the commercial success of the article could be due to its utilitarian features, which happens to be the plaintiff’s argument on the issue of patent infringement and ironically enough weakens his case on design infringement. This is because functionality of a “design” robs it of registrability under the Designs Act and so it cannot play a role in deciding the balance of convenience. Luckily for the plaintiff, neither of these issues (originality of the design and balance of convenience) were addressed by the Court.On the issue of passing off, the Court missed out on the opportunity to discuss the issue of trade dress present a registered design. It is clear that trade dress goes beyond the design and in certain cases where the design is not original enough, trade dress may come to its aid. The only issue which the Court addressed in this regard was that absent a pleading in the Plaint for a common law relief, the Court could still grant an injunction under s.151 of the CPC which confers on it power to grant injunctions if the matter is not covered by Rules 1 and 2 of Order 39 of the Code.And so, the Court upheld the ad interim injunction granted by the Single Judge against infringement of the design.B. Infringement of the PatentSimilar cases have been discussed before on SpicyIP, so I shall restrict myself to the averments in this case. The defendants alleged there was no invention in making a machine which can manufacture artificial laminated food grade paper in the shape of a banana leaf. The plaintiff countered that nobody had thought of such an idea before and the success of the product was proof enough of its ingenuity.The Court briefly referred to earlier decisions on the doctrine of immaterial variants and ruled that the plaintiff’s process did not amount to an invention, at best it could be termed an innovation since laminated paper technology was well known all over the world. I wonder if it follows that the use of such a technology in an altered form to produce a specific product lacks inventive step altogether? The 1969 decision of the Bombay High Court in Farbwerke Hoechst Aktiengesellschaft vormals Meister Lucius & Bruning a Corporation etc., v. Unichem Laboratories and Ors is instructive in this regard for it lays down certain principles for judging an “invention” consisting of the production of new substances by known methods from known materials which can be supported from the point of view of subject-matter. According to the judgment:
(i) An invention consisting of the production of new substance from known materials by known methods cannot be held to possess subject-matter merely on the ground that the substances produced are new, for the substances produced may serve no useful purpose, in which case the inventor will have contributed nothing to the common stock of useful knowledge (the methods and materials employed being already known) or of useful materials (the substances produced being, ex hypothesis, useless).
(ii) Such an invention may, however be held to possess subject-matter provided the substances produced are not only new but useful, though this is subject to the qualification that the substances produced must be truly new, as opposed to being merely additional members of a known series (such as the homologues) and that their useful qualities must be the inventor's own discovery as opposed to mere verification by him of previous predictions.
(iii) Even where an invention consists of the production of further members of a known series whose useful attributes have already been described or predicted, it may possess sufficient subject-matter to support a valid patent provided the somewhat stringent conditions prescribed by Maugham J., as he then was, in I.G. Farbenindustrie A. G.'s Patents, (1930) 47 RPC 289 as essential to the validity of a selection patent are satisfied, i.e. the patent must be based on some substantial advantage to be gained from the use of the selected members of the known series or family of substances, the whole (or substantially the whole) of the selected members must possess this advantage, and this advantage must be peculiar (or substantially peculiar) to the selected group.
In the instant case, the plaintiff’s invention may fall under the second or third category which may be further supported by its commercial success. Yet the Court denied an interim injunction with reason for such a ruling being fuzzy. In para 66, the judgment reads thus:
“Therefore, applying the principles laid down in the above cited decisions, we hold that even though the banana leaf is a natural product, the invention on the part of the applicant/plaintiff to use artificial laminated food-grade shape in the form of banana leaf with its colour with artificial scented smell is prima facie innovative and that in view of the Patent granted in his favour for the said product, he is entitled for protection pending disposal of the suit.”
And in para 71, it says:“Since applications for opposition of grant of patent are pending adjudication before the appropriate authority, and that we are of the prima facie view that the concept of artificial banana leaf prima facie appears to be innovative only, we are not inclined to interfere with the order passed by the learned single Judge”……thereby confirming the denial of interim injunction against infringement of the patent. The only coherent part of this judgment is where it says, on the basis of a combined interpretation of ss.48 and 108, that a patentee is entitled to interim relief pending the disposal of the suit and that presumptive validity is indeed a factor to be considered at an interlocutory stage.ConclusionBoth parties deserve a better judgment; one hopes that Courts apply precedents instead of merely citing them for the sake of citing them.
Posted by J. Sai Deepak...Iyer at 7:30 PM


Delhi High Court lifts stay on release of Sorry Bhai
http://sify.com/movies/bollywood/fullstory.php?id=14807762&cid=2359
Friday, 28 November , 2008, 12:55
The Delhi High Court cleared the release of Bollywood film Sorry Bhai, lifting the stay after its producers agreed to delete a contentious song.
The film was scheduled to be released Friday.
The court stayed the release of the film till December 8 following a complaint by singer Rabbi Shergill that one of the film's songs was copied from a composition from his album Avengi Ja Nahi.
The film will release on Friday as originally scheduled subject to deletion of the particular song and the music related to the song from the film.
Sorry Bhai comes with the punch line "Come, fall in love with your brother's bride". It stars Sanjay Suri, Sharman Joshi and Chitrangada Singh in lead roles, supported by Shabana Azmi and Boman Irani.