Malimath, J.
(1) This appeal arises out of a suit praying for damages for Rs. 30,000/- and also for an injunction restraining defendants 1 to 3 from manufacturing or marketing flower design chair seats. These reliefs are apparently claimed on the ground that the plaintiff has the patent rights under the Patents and Designs Act. But it is a curious suit in that the registered patentees are admittedly defendants 1 and 2 and, on their assignment, the name of defendant 3 has been registered as an assignee.
Admittedly the name of the plaintiff is nowhere to be found it the Register of Patents. Ordinarily a suit for infringement of this nature is brought by a patentee against strangers on the allegation that there is an infringement by them of the patent rights. In this case, it is just the reverse of it. We had, therefore, to ask the learned advocate for the appellant to explain how he claims the rights of a patent so as to enable him to file such an action for infringement.
His contention is that although his name is not registered as a patentee, the patent rights accrue to him by reason of the fact that the invention in question was made by the joint skill, ingenuity and labour of defendants 1 and 2 as well as of the plaintiff who formed the partnership and carried on business under the name and style of 'Bangalore Wood Industries'. This claim of the plaintiff is assailed on the ground that no such case is made out anywhere in the pleadings and also on the ground that the suit is not maintainable as it contravenes the provisions of S. 29 (2) of the said Act.
(2) Looking to the nature of the reliefs sought, it cannot be disputed that this is an infringement suit. It is contended by the learned advocate for respondent 3 that the said section require that such a suit could only be brought by a patentee. He contends that it is not open to any one to file a suit unless he is a patentee. The term 'patentee' has been defined in clause 12 of S. 2 :
''Patentee' means the person for the time being entered on the register of patents kept under this Act as the grantee or proprietor of the patent.' It is not disputed that the name of the plaintiff finds no mention in the Register of Patents. It is, therefore, contended that the plaintiff has to right to file a suit under S. 29. As already mentioned, the reply for the appellant is that by reason of the joint acquisition, the plaintiff has derived a beneficial interest in the plaintiff has derived a beneficial interest in the right of a patent. Whether there is evidence to show that he has acquired this right or not, is a question of fact which will be discussed later.
Assuming he has acquired such a right, the remedy appears to be the one provided under S. 63 of the Act. Sub-section (1) of that section requires that any person who becomes entitled by assignment, transmission or other operation of law to a patent, may make an application to the Controller to register his title.. The Controller shall on proof of his title register him as the proprietor of such patent. In this case, it is admitted that the plaintiff has not made any such application and consequently there is no entry of his name in the Register.
As such, he cannot be deemed to be a patentee qualified to institute a suit under S. 29. The learned advocate for the appellants contends that S. 63 is an enabling section and that, although it was open to the appellant to follow the procedure laid down in that section, it does not debar him from bringing an action under S. 29 on the allegation that he is a person who has acquired the rights of a patent and to prove such an acquisition in the Court.
Whether such a construction admits the inclusion of pensions claiming to be patentees within the meaning of S. 29(1) is a matter that deserves consideration. Assuming that the intention of the Legislature was to give such an extensive use, nothing prevented it from saying that a 'patentee or a person claiming to be a patentee' may institute a suit instead of restricting the right to file a suit to a patentee alone.
The obvious intention of including the provisions of S. 63 in the Act is for the purpose of helping a person like the plaintiff who may have been left out from getting his name included in the Register by proving before the Controller that he has got the rights which he claims. It is only then that he acquires the rights of a patent under the Act and that he can file a suit under S. 29. A similar view has been expressed by the Calcutta High Court in the case of Hiralal Banjara. In re-Patents and Designs Act, reported in : AIR1937Cal365 . The plaintiff, in that case, alleged that he was the proprietor of the patent in question which had been originally grated to the petitioner. It was observed.
'but the fact was that although the petitioner had assigned his rights to that plaintiff, the latter had not registered the assignment under the provisions of Section 63 of the Indian Patents and Designs Act. Therefore he was not the patentee within the meaning of the Act (Section 2, sub-section 12) and had no right to bring any suit for infringement of patent rights regarding the patent to question.'
Under these circumstance we have to hold that the plaintiff could not institute this suit under the provisions of Section 29 of the said Act.
(3) Coming now to the facts of the case, the initial difficulty is that the case now sought to be made out by the plaintiff does not find a place in the pleadings. The admitted facts are that the plaintiff and defendants 1 and 2 entered into a partnership on 17-9-45 with the avowed object of erecting a factory and thereafter manufacturing wooden articles.
The plaintiff was the financing partner and defendants 1 and 2, who were prior to this partnership working in the Mysore Ply Wood Corporation, were the working partners. It appears that the invention in relation to the manufacture of flower design chair seats was perfected during the continuance of this partnership. It is also in evidence that the manufacture of the said goods yielded considerable profits.
Unfortunately disputes arose with the result that a decision was taken on 13-1-47 to wind up the partnership. However, the accepted date of dissolution appears to be 15-1-47. According to the terms of dissolution, a sum of Rs. 20,000/- roughly representing their share in the profits of the concern, was to be given to defendants 1 and 2, by the plaintiff. The said amount appears to have been actually paid on or about 5-2-47 on which date they passed a receipt or a release in favour of the plaintiff. This document is Ext. BB.
It is contended by the learned Advocate for the appellant that it was during the continuance of this partnership that defendants 1 and 2 as well as the plaintiff brought about the invention. It is, however, admitted that, on 4-3-46, defendants 1 and 2 alone applied for registering their names as inventors and for the grant of a patent in their favour. This application was finally sealed on 6-2-47, the day next after the release deed was passed. In this connection, the plaintiff has made several allegations in the plaint against the conduct and bona fides of defendants 1 and 2. According to him this application was made behind his back and the names of defendants 1 and 2 were got registered as patentees in a fraudulent manner. The allegations of fraud are also to be seen in the reply notice, Ext. X, dated 26th March 1947.
The same allegations are again repeated in the plant as though a cause of action was being built up for a plea of revocation on the ground of fraud. But ultimately there is no prayer for revocation, possibly because, such a relief could not be granted by the District Court. Suffice it to say that, in the pleadings, no case is made out to show that the plaintiff is an inventor or one of the inventors. However, from the evidence on record, such a case is sought to be built up by the learned Advocate for the appellant.
(4) Before going into the evidence of the point, it is necessary to consider whether the plaintiff, who was a financing partner, could be deemed to be one of the inventors, or, whether the firm could be treated as an inventor such that the name of the firm itself could be registered directly as a patentee. It is not the plaintiff's case that he contributed any part of his ingenuity or skill or technical knowledge towards the invention in question. All that he says in that he gave the wherewithal viz., the finances for the running of the concern that with this help experiments were made and ultimately the invention was evolved. It is not disputed that the persons that actually laboured and found out the process were defendants 1 and 2. Under these circumstances, it is very difficult to accept that the plaintiff could be treated as an inventor.
(5) The next question for consideration is whether the firm can be treated as an inventor. A firm cannot be said to have the capacity to invent. It cannot be called an inventor although there may be no objection to its being registered as a patentee either or assignment by a patentee or jointly with the true and first inventor. A corporation cannot be the sole applicant claiming to be the inventor.
(6) It is argued by the learned counsel for the appellant that defendants 1 and 2 had no ready invention before they entered into the partnership. According to the plaintiff, it was he who suggested that a manufacture of the flower design chair seats would be a profitable business and who advised defendants 1 and 2 to take up the work. P. W. 1 who is a manufacturer of electrical heating appliances, states that defendants 1 and 2 wanted him to manufacture a heating appliance for scarring wood. We supplied an electrical heating cast-iron plate according to their orders. He, however, adds that the Bangalore Wood Industries paid the amount and also that he suggested the design to defendants 1 and 2 and prepared the machine according to their design.
Ext. C-5 shows that a sum of Rs. 196/- was paid by the firm on 4-6-46 in respect of the electric heaters. Exts. S. To S. 15 are invoices showing certain machines supplied by metro malleables between 9-10-45 and 19-2-46. From these and such pieces of evidence, it is urged that the invention made is a product of the partnership and that defendants 1 and 2 cannot claim the right of invention to themselves. It is very difficult to accept this claim.
(After discussion of evidence His Lordship concluded). From this evidence, it is obvious that the persons who were responsible for the invention must be defendants 1 and 2 and not the plaintiff.
(7) In the result, this appeal fails and it is dismissed with costs.
Ahmed Ali Khan, J.
(8) I agree.
(9) Appeal dismissed.