Sulphur Mills Limited vs Dharmaj Crop Guard Limited & Anr. 2024 Latest Caselaw 2286 Del

Delhi High Court Sulphur Mills Limited vs Dharmaj Crop Guard Limited & Anr. on 18 March, 2024 Author: C. Hari Shankar Bench: C. Hari Shankar $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 1225/2018, CC(COMM) 9/2019 & I.A. 3913/2023 SULPHUR MILLS LIMITED ..... Plaintiff Through: Mr. Hemant Singh, Mr. Hari Subramaniam, Ms. Mamta Rani Jha, Mr. Siddhant Sharma, Mr. Sanuj Das and Mr. Abhay Tandon, Advs. versus DHARMAJ CROP GUARD LIMITED & ANR. .... Defendants Through: Mr. Prashant Phillips, Ms. Vindhya S. Mani and Ms. Vaishali Joshi, Advs. D-1 + CS(COMM) 525/2021, I.A. 15315/2021, I.A. 3860/2023, I.A. 7390/2023, I.A. 7986/2023, I.A. 7990/2023, I.A. 7991/2023, I.A. 7992/2023 & I.A. 11784/2023 SULPHUR MILLS LIMITED ..... Plaintiff Through: Mr. Hemant Singh, Mr. Hari Subramaniam, Ms. Mamta Rani Jha, Mr. Siddhant Sharma, Mr. Sanuj Das and Mr. Abhay Tandon, Advs. versus DAYAL FERTILIZERS PVT. LIMITED AND ORS. ..... Defendants Through: Ms. Rajeshwari H., Mr. Swapnil Gaur and Mr. Deepanshu Nagar Advs. for D-1&3 Mr. S.K. Bansal and Mr. Ajay Amitabh Signature Not Verified Suman, Advs. for D-2 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 1 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 + CS(COMM) 564/2021, I.A. 14641/2021 & I.A. 5354/2023 SULPHUR MILLS LIMITED ..... Plaintiff Through: Mr. Hemant Singh, Mr. Hari Subramaniam, Ms. Mamta Rani Jha, Mr. Siddhant Sharma, Mr. Sanuj Das and Mr. Abhay Tandon, Advs. versus SULPHUR CROP CARE PVT. LTD. & ORS. ..... Defendants Through: + CS(COMM) 621/2021, I.A. 15971/2021 & I.A. 5320/2023 SULPHUR MILLS LIMITED ..... Plaintiff Through: Mr. Hemant Singh, Mr. Hari Subramaniam, Ms. Mamta Rani Jha, Mr. Siddhant Sharma, Mr. Sanuj Das and Mr. Abhay Tandon, Advs. versus MOTI INSECTICIDES PVT. LTD. ..... Defendant Through: Ms. Rajeshwari H., Mr. Swapnil Gaur and Mr. Deepanshu Nagar Advs. + CS(COMM) 627/2021, I.A. 16098/2021, I.A. 10877/2022, I.A. 14689/2022 & I.A. 5319/2023 SULPHUR MILLS LIMITED ..... Plaintiff Through: Mr. Hemant Singh, Mr. Hari Subramaniam, Ms. Mamta Rani Jha, Mr. Siddhant Sharma, Mr. Sanuj Das and Mr. Abhay Tandon, Advs. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 2 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 versus CROP CHEMICALS INDIA LTD. ..... Defendant Through: Ms. Rajeshwari H., Mr. Swapnil Gaur and Mr. Deepanshu Nagar Advs. + CS(COMM) 344/2022, I.A. 8074/2022, I.A. 17754/2022, I.A. 17786/2022, I.A. 5316/2023, I.A. 7480/2023 & I.A. 7481/2023 SULPHUR MILLS LIMITED ..... Plaintiff Through: Mr. Hemant Singh, Mr. Hari Subramaniam, Ms. Mamta Rani Jha, Mr. Siddhant Sharma, Mr. Sanuj Das and Mr. Abhay Tandon, Advs. versus SHREE RAM AGRO INDIA & ORS. ..... Defendants Through: Ms. Rajeshwari H., Mr. Swapnil Gaur and Mr. Deepanshu Nagar Advs. CORAM: HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT % 18.03.2024 1. The plaintiff in all these suits is the registrant of Indian Patent IN 282429 (IN'429) titled "Novel Agricultural Composition" (hereinafter referred to as "the suit patent" and the "suit composition"). The plaint alleges that the defendants in these suits are Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 3 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 infringing the suit patent and seeks a decree of permanent injunction restraining them from doing so. 2. Applications have been filed, in these suits, by the plaintiff, under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (the CPC), seeking interlocutory injunction against the defendants exploiting the suit patent, pending disposal of the suits. They are IA 15243/2018 in CS (Comm) 1225/2018, IA 15315/2021 in CS (Comm) 525/2021, IA 15971/2021 in CS (Comm) 621/2021, IA 16098/2021 in CS (Comm) 627/2021 and IA 8074/2022 in CS (Comm) 344/2022. This judgment disposes of said IAs. 3. Detailed submissions were advanced by learned Counsel for all parties, over several days. Copious written submissions have also been filed. Mr. Hemant Singh argued for the plaintiff in all the suits. Mr. S.K. Bansal led arguments for the defendant in CS (Comm.) 525/2021 and Ms. Rajeshwari H argued for the defendant in CS (Comm.) 525/2021, CS (Comm.) 621/2021, CS (Comm.) 627/2021 and CS (Comm.) 344/2022. Rival Stands 4. The following submissions have been advanced by the plaintiff, in the plaint as well as at the Bar through Mr Hemant Singh: (i) Sulphur is a known elemental fertilizer for feeding plants. It is essential for the synthesis of chlorophyll in leaves and Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 4 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 fixation of nitrogen in legumes. Sulphur, along with phosphorous and nitrogen, is essential for balanced fertilization of plants. (ii) Sulphur cannot, however, be directly absorbed by plants. Elemental sulphur is insoluble in water, inflammable and is an irritant. Sulphur has, therefore, to be absorbed in its sulphate (SO4) form. (iii) Over a passage of time, the content of natural sulphur in soil has decreased. (iv) Traditionally, fertilizers contained sulphur blended with other granular substances such as phosphates, nitrates, urea and potash. These were dispensed in the form of prills, soluble sulphur liquids and wettable powders and mirconized powders which were then applied to the soil. (v) Existing sulphur containing fertilizer formulations, however, posed the following drawbacks, in their use: (i) The fertilizer had to be applied in high doses, ranging between 10 kg per acre for Sulphur bentonite compositions or about 25 kg per acre for sulphur based fertilizers to more than 100 kg per acre in the case of gypsum. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 5 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (ii) There was a high risk of leaching1 owing to the high concentration of these compositions in the soil. (iii) Conversion into sulphate and rendering the sulphate available to the plants took considerable time. The fertilizer had to be applied to the soil 2 to 8 months in advance in the case of sulphur powder and 2 to 3 months in the case of sulphur prills. (iv) The techniques for application of the fertilizers was incompatible with modern irrigation methods such as drip and sprinkler irrigation. Owing to the large particle size of the compositions, they do not disperse in water. This leads to nozzle clogging in the irrigation equipment. The averment, in part 14 of the plaint, that the existing sulphur based fertilizers had large particle size of 50 - 100 µm has not been denied in the corresponding paragraph of the written statement of the defendants. (v) In conventional fertilizer compositions, use of sulphur of very fine particle size (75-150 µ) was considered to represent a fire and explosive hazard. Reference was made, in this context, to the article Elemental sulfur fertilizers and their use on crops and Signature Not Verified 1 Leaching refers to the loss or extraction of certain materials from a carrier into a liquid. Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 6 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 pastures by C.C. Boswell and D.K. Friesen2, on which the defendants themselves sought to place reliance. (vi) On dissolution in water, conventional fertilizer compositions do not exhibit uniform suspension. This results in uneven coverage on the plant and reduces the bio-efficacy of the product. (vii) Sulphuric acid, nitric acid and phosphoric acid, which are used to produce these fertilizers, are hazardous. (vi) Sulphur based agricultural compositions may be fungicides or fertilizers. Fungicides protect crops from fungi. They are usually sprayed on the leaves of the plants (foliar application), as the fungi are on the plant surface. Fertilizers, on the other hand, are plant growth regulators and are, therefore, applied in the soil. Sulphur in fertilizers is converted into sulphate and assimilated by the plants. Thus, the manner of application of fertilizers and fungicides is totally distinct and different. (vii) Over a period of time, the concept of Water Dispersible Granules (WDGs) in agrochemical formulations was evolved. WDGs were known in the prior art. The plaintiff's own earlier Indian Patent Application 655/MUM/2000 (hereinafter referred to as "App 655") was for "an improved fungicide/miticide, Signature Not Verified 2 Fertilizer Research 35 by Kluwer Academic Publishers © 1993 pg 127 @ pp 128-140 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 7 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 sulphur formulation in the dry flowable form (WG) and a method of manufacturing the same". App 655 was cited, before the Controller of Patents, as the closest prior art in third party pre-grant oppositions to the suit patent, as divesting the suit patent of novelty and inventive step, but was distinguished by the Controller in his order dated 11 April 2017, holding, inter alia, thus : "Patent. The '655 application disclosed discloses a fungicide composition comprising 80% Sulphur on a dry basis as described in claim 1 thereof. '655 application further discloses that the composition, as described and claimed therein, was effective in reducing the intensity of diseases on the aerial parts of plants at a low concentration. On the other hand, the subject patent provides a plant growth or fertilizer composition with a high loading of sulphur in the range of 82% to 98%. The '655 application nowhere discloses a composition with a high loading of sulphur as high as 82% to 98% by weight. The '655 application provides a foliar application of Sulphur for pest control, whereas the subject patent provides sulphur composition for soil application to facilitate sulphate conversion for ready uptake by the plants for their growth and high yield." (viii) The "Background of the Invention", containing the field of the invention, description of related art, summary of the invention and the Claims in the suit patent read thus: "BACKGROUND OF INVENTION 1. FIELD OF THE INVENTION The present invention relates to an agricultural composition comprising an effective amount of a sulphur active ingredient and at least one dispersing agent. 2. DESCRIPTION OF THE RELATED ART All the crops need balanced fertilization and presently high emphasis is laid on N-P-K as major nutrients for fertilizer applications. However, in the past couple of years sulphur has gained importance as a fourth major nutrient and its requirement in various crops and soils is increasing world wide due to the decrease in sulphur emissions and hence lower depositions into Signature Not Verified the soil. Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 8 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Sulphur is known as an elemental fertilizer for feeding plants and is an essential component of certain vitamins and enzymes of plants. Sulphur, together with phosphorus and nitrogen takes part in the synthesis of certain plant proteins. Sulphur is insoluble in water, is easily inflammable and also displays irritable action on the human body. These properties of sulphur influence both its production as well as its use in the agricultural field. Sulphur is also used as a rectifier of certain, structural characteristics of the. soil, including in particular its pH, which it shifts towards acidic values for alkaline soils. Sulphur is naturally present in the soil as a component of certain salts. When sulphur is oxidized, to its sulphate form it serves as an essential nutrient for plant growth as sulphate is the only form in which plants can take up sulphur. Presently, sulphur is typically blended with other granular fertilizers such as phosphates, nitrates, urea and potash among others to provide it in a form suitable for application to the soil. Sulphur is available commercially as prills, soluble sulphur liquids, wettable powders and micronized powders. These compositions are then applied to the soil by various means such as broadcasting or banding to supply the soil with sulfur, as well as additional nutrients found in the granular fertilizers. One problem associated with the use of these conventional compositions is that they need to be applied in very high dosages. The applicable dosage of these conventional compositions per acre is very high and can extend from about 10kg / acre for Sulphur bentonite compositions to about 25 kg per acre for Sulphate based fertilizers and goes all the way to more than 100 kg/acre in case of gypsum. Also since these conventional compositions are used in high dosages there is an increased possibility of leaching in the soil making it unavailable to the plant for uptake. Large amount of money is being spent for drip and sprinkler irrigation for several horticultural crops and the use and practice of drip irrigation is increasing considerably. However, the conventional fertilizers comprising sulphur or sulphur plus bentonite mixtures cannot be applied through drip irrigation as the particle size of these compositions are large and the particles do not disperse in water, causing nozzle clogging in the irrigation equipment and resulting in a non-homogenous tank mixture at the time of application. These conventional compositions such as pellets and wettable powders do not exhibit uniform suspension resulting in uneven coverage on the plant and thereby affecting and minimizing the bio-efficacy of the product. They also need to be applied two to three months in advance so as to ensure timely conversion to sulphate and its uptake by the plant for which there is additional application and cost. Conventionally, acids such as sulfuric acid, nitric acid and/or Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 9 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 phosphoric acid and ammonia (anhydrous) are used to produce these conventional fertilizers. The use of these chemicals creates a potentially hazardous environment for production of the fertilizer. In developing countries, these chemicals may be less available with the consequence that fertilizer must be imported at a considerable expense and crop yields are reduced in areas where food is most needed. Sulphur has also been incorporated in fertilizer compositions for a different purpose. Specifically, sulphur has been used in the manufacture of compositions such as Sulphur bentonite pellets. Calcium Sulphate, Ammonium Sulphate and other sulphate based compositions of fertilizers, the process of conversion of Sulphur to sulphate form is slow and sulphate is the only form in which plants can take up sulphur. In the conventional sulphur based fertilizers it is observed that sulphur is not timely converted into sulphate and hence is not readily available to the plant. There is a need, therefore, to develop a composition which converts sulphur to its sulphate form almost instantly to be available for uptake by the plants and which delivers sulphur and other nutrients uniformly and effectively to the soil and the plant does not need to be applied in advance or as an additional application and can be applied with ongoing applications. Also there is a need to reduce the dosage substantially so as to develop a composition which is economical to the farmers. The composition exhibits a good suspension and dispersion properties in water and soil moisture so as to be miscible with other soluble fertilizers and hence applicable through drip and sprinkler irrigation to ensure a uniform spray and availability. SUMMARY OF THE INVENTION: The present invention relates to a novel composition for agricultural use comprising an effective amount of a sulphur active ingredient and an at least one dispersing agent. According to an embodiment, the sulphur active ingredient is in the range of about 40% to about 98% (w/ w) and the at least one dispersing agent is in the range of about 2% to about 60% (w/w). According to an embodiment the agricultural composition is used as at least one of a fertilizer composition, a nutrient composition, a plant strengthener composition, a plant protectant composition, a soil conditioner composition and a yield enhancer composition. According to an embodiment, the agricultural composition is formulated in a form selected from a group comprising at least one of wettable powders, water dispersible granules, dusting powders, suspension concentrates, emulsifiable concentrates, tablets, liquids and oil suspensions. According to an embodiment the agricultural composition is a water dispersible granule composition. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 10 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 According to an embodiment the invention also relates to a method of treating the plant by applying the agricultural composition primarily to the basal and also to the foliar parts of the plant. I Claim: 1. An agricultural composition for application to the soil that converts Sulphur to its sulphate form instantly to be available for uptake by the plants, the agricultural composition comprising: an effective amount of a Sulphur active ingredient in a range of 82% to 98% (w/w) and at least one dispersing agent in a range of 2% to 18% (w/w); wherein the said composition is in a form of water dispersible granules and wherein the water dispersible granules are in a size range of 0.1 to 2.5 mm and comprise particles in a size range of 2 microns to 12 microns. 2. The agricultural composition as claimed in claim 1 wherein, at least one dispersing agent is selected from a group comprising polyyinylpyrrolidone, polyvinylalcohol, lignosulphonates, phenyl naphthalene sulphonates, ethoxylated alkyl phenols, ethoxylated fatty acids, alkoxylated linear alcohols, polyaromatic sulfonates, sodium alkyl aryl sulfonates, glyceryl esters, maleic anhydride copolymers, phosphate esters, condensation products of aryl sulphonic acids and formaldehyde, condensation products of alkylaryl sulphonic acids and formaldehyde, addition products of ethylene oxide and fatty acid esters, salts of addition products of ethylene oxide and fatty acid esters, sulfonates of condensed naphthalene, lignin derivatives, naphthalene formaldehyde condensates, sodium salt of isodecylsulfosuccinic acid half ester, polycarboxylates, sodium alkylbenzenesulfonates, sodium salts of sulfonated naphthalene, ammonium salts of sulfonated naphthalene, salts of polyacrylic acids, salts of phenolsulfonic acids and salts of naphthalene sulfonic acids. 3. The agricultural composition as claimed in claim 1, wherein the composition further optionally comprises a wetting agent in the range of 0.1% to 5% (w/w); a binding agent in the range of 0.1% to 7% (w/w); and a filler in the range of 0.1% to 5% (w/w). 4. The agricultural composition as claimed in claim 3, wherein the wetting agent is selected from a group comprising phenyl naphthalene sulphonates, alkyl naphthalene sulfonates, sodium alkyl naphthalene sulfonate, sodium salt of sulfonated alkylcarboxylate, polyoxyalkylated ethyl phenols, polyoxyethoxylated fatly alcohols, polyoxyethoxylated fatty Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 11 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 amines, lignin derivatives, alkane sulfonates, alkylbenzene sulfonates, salts of polycarboxylic acids, salts of esters of sulfosuccinic acid, alkylnaphthalenesulphonates, alkylbenzenesulfonates, alkylpolyglycol ether sulfonates, alkyl ether phosphates, alkyl ether sulphates and alkyl sulfosuccinic monoesters. 5. The Agricultural composition as claimed in claim 3, wherein the binding agent is selected from one or more of polyvinyl alcohols, phenyl naphthalene sulphonate, lignin derivatives, polyvinylpyrrolidone, polyalkylpyrrolidone, carboxymethylcellulose, xanthan gum, polyethoxylated fatty acids, polyethoxylated fatty alcohols, ethylene oxide copolymer, propylene oxide copolymer, polyethylene glycols and polyethylene oxides. 6. The agricultural composition as claimed in claim 3, wherein the filler is selected from one or more of bentonites, sub- bentonites, attapulgites, kaolinites, montmorillonites, bauxite, hydrated aluminas, calcined aluminas, diatomaceous earth, chalk, fuller's earth, dolomite, kiesulguhr, loess, prophyllites, talc, vermiculites, limestone, natural and synthetic silicates, silicas and china clay. 7. The agricultural composition as claimed in claim 1 or 3, wherein the composition further optionally comprises an additive in the range of about 0.01 % to about 50% (w/w)." (ix) The suit patent arose out of the need to develop a fertilizer composition which could convert sulphur to sulphate almost instantaneously, so as to be available for uptake by plants. This would overcome one of the most serious drawbacks in existing sulphur based fertilizers. (x) The bibliographic details of the suit patent are as under: Bibliography of Indian Patent No. 282429 (filed as Indian Patent Application No 40/MUM/2007) Filing date 08/01/2007 Date of publication 02/02/2007 (U/S 11 A) Date of issuance of 17/05/2007 Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 12 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 First Examination Report (FER) Date of Filing of 06/05/2008 response to First Examination Report (FER) (Reply to FER) Date of Grant 11/04/2017 Date of Publication 14/04/2017 of grant of Patent u/S 43(2) (xi) Among the advantages of the claim in the suit patent over prior art were (a) reduced dosage, (b) increased efficacy, (c) immediate conversion of sulphur into sulphate for ready uptake by plants, and (d) usability through drip and sprinkler irrigation systems. (xii) The subject matter of the suit patent was, therefore, an agricultural composition, (a) with an effective amount of sulphur as active ingredient, (b) along with at least one dispersing agent, (c) in the form of water dispersible granules, (d) having (i) specific granule size, and (ii) specific particle size. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 13 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (xiii) The composition of the invention claimed in the suit patent comprises (a) sulphur as an active ingredient in the range 82% to 98% (w/w) and (b) at least one dispersing agent in the range 2% to 18%(w/w), in the form of WDGs, of a size in the range of 0.1 to 2.5 mm, comprising particles of the size 2 µ to 12 µ. Additionally, it could comprise at least one wetting agent, a binding agent, a filler and an organic additive. (xiv) The product corresponding to the claimed composition in the suit patent could be used as a fertilizer, a nutrient, a plant strengthener, a soil conditioner and a yield enhancer. It had the following advantages over prior art: (a) It delivered sulphur uniformly and effectively to the soil. (b) There was no need for prior application. (c) Significantly less dosage of sulphur was required. This reduced costs. (d) It could be used with the drip and sprinkler irrigation system which would ensure uniform spray and availability. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 14 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (xv) There are six examples in the complete specification of the suit patent, which describe the claimed invention. The specifications also indicate the tests by which to determine the suspensibility and dispersibility of the composition. The manner of application of the composition to the soil so as to result in significance crop yield increase with greater nutrient content is also indicated in the specifications. (xvi) The rapid conversion of sulphur to sulphate by the composition in the suit patent, which results in a significantly enhanced yield and improved physiological plant parameters, with surprisingly reduced dosages for field application, which have never been observed with any sulphur based fertilizers known thus far. (xvii) The suit patent has nine claims, of which Claim 1 is independent and Claims 2 to 9 are dependent on Claim 1. (xviii)The salient features of Claim 1 are that it is/has (a) an agricultural composition for soil application, (b) a composition which converts sulphur to sulphate instantly for ready uptake by plants, (c) sulphur as an active ingredient in the range 82% to 98% (w/w), (d) at least one dispersing agent of 2% to 18% w/w, in the form of WDGs, which Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 15 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (i) are of size 0.1 to 2.5 mm, which, in turn, (ii) contain particles of size 2 µ to 12 µ. (xix) Dr. Pietro Zannucoli, the inventor of the US 5599373 (US'373) patent, which was one of the cited prior arts during the pre-grant opposition to the application for registration of the suit patent, has, by affidavit, confirmed the novelty and inventiveness of the invention claimed in the suit patent vis-à- vis prior art. He has further confirmed that the invention in the suit patent would not, from the specifications in the suit patent, be obvious to a person skilled in the art, because achieving Sulphur particles of size below 12 µ with high loading of sulphur inside WDGs was unknown in the field. The high possibility of explosion if the sulphur size were reduced would also be an intimidating factor to a person seeking to use sulphur of reduced size. Reliance has also been placed on the expert affidavit dated 31 December 2021 of Dr. Sunil Kumar Khatter, a former scientist at Hindustan Insecticides Ltd. (xx) The suit patent has weathered the following pre- and post-grant oppositions: Bibliography of examination milestones and oppositions against Indian Patent No. 282429 (filed as Indian Patent Application No 40/MUM/2007) First Examination Report (FER) First Examination Report (FER) Response to First Examination Response to First Report (Reply to FER) Examination Report (Reply to FER) Pre-grant oppositions By Jaishil Sulfur & Chemical By Jaishil Sulfur & Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 16 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Industries Chemical Industries By Mr. Vilash Shetty By Mr. Vilash Shetty By M/s Safex Chemicals India By M/s Safex Chemicals Pvt. Ltd. India Pvt. Ltd. By Haryana PesticidesBy Haryana Pesticides Manufacturers Association Manufacturers Association By M/s Jailaxmi Industries By M/s Jailaxmi Industries By M/s Swati Petro Products By M/s Swati Petro Pvt. Ltd. Products Pvt. Ltd. By Excel Crop Care By Excel Crop Care Date of Grant Date of Grant Post-Grant Publication u/s 43(2) Post-Grant Publication u/s 43(2) Post-Grant Opposition By M/s Safex Chemicals India By M/s Safex Chemicals Pvt. Ltd. India Pvt. Ltd. By Haryana Pesticides By Haryana Pesticides Manufacturers Association Manufacturers Association By Dharmaj Crop Guard By Dharmaj Crop Guard Limited/Defendant No. 1 Limited/Defendant No. 1 By Crop Life Science Limited By Crop Life Science Limited By Excel Crop Care By Excel Crop Care By Solar Chemferts Pvt. Ltd. By Solar Chemferts Pvt. Ltd. The grounds raised by the defendants in the present case, to seek to discredit the validity of the suit patent, are the very same grounds which were raised and rejected in the above proceedings. As such, a clear prima facie case, in the plaintiff's favour, exists even on this score. (xxi) The Controller of Patents has, thus, in the above decisions, clearly found the invention in the suit patent to be novel and inventive vis-à-vis all known prior arts. The Controller has found the suit patent not to be vulnerable to invalidity either on the ground of anticipation by prior Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 17 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 publication under Section 25(1)(b)3 or anticipation by prior claiming under Section 25(1)(c)4, or on account of its having been publicly known prior in point of time under Section 25(1)(d)5 or on the ground of obviousness or lack of inventive step under Section 25(1)(e)6 or for insufficiency of disclosure or want of proper disclosure under Sections 25(1)(g)7 or (h)8, among others. (xxii) Patents, corresponding to the suit patent, have been granted to the plaintiff in USA, Australia, New Zealand, Vietnam, Malaysia, South Korea and China, in each case under the title "Novel Agricultural Composition". Thus, the suit 3 25. Opposition to the patent.-- (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the ground-- *** (b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim-- (i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or (ii) in India or elsewhere, in any other document: Provided that the ground specified in sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of sub-section (2) or sub-section (3) of Section 29; (c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant's claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant's claim (d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim. (e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim; 7 *** (g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; (h) that the applicant has failed to disclose to the Controller the information required by Section 8 or has furnished the information which in any material particular Signature Not Verified was false to his knowledge; Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 18 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 patent, and the invention claimed therein, stood validated not only in India but also in foreign jurisdictions. (xxiii)The suit patent has also been extensively worked in India. (xxiv) The plaintiff, therefore, has a statutory right to injunct others from manufacturing or dealing with any product corresponding to the invention claimed in the suit patent. (xxv) The composition claimed in the suit patent is manufactured and marketed by the plaintiff under the brand name FERTIS WG, with the following composition:  Water dispersible granules  Sulphur (Active Ingredient): 82-98%  Dispersing Agent: 2-10%  Granule size: between 0.1 to 2.5 mm  Particle size: between 2 to 12 µ The formulation is applied through drip irrigation or broadcasting and direct application to the soil. (xxvi) On coming to know that Defendants 1 and 3 (Dayal Fertilizers Pvt Ltd, hereinafter referred to as "Dayal" and Mitul Industries, hereinafter referred to as "Mitul") were seeking to infringe the suit patent IN'429, the plaintiff issued a legal notice to said defendants calling on them to cease and desist from doing so. Defendants 1 and 3, in their replies to the cease and Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 19 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 desist notice, denied infringing the suit patent and further contested the validity of the suit patent on the ground that it was based entirely on known prior arts and was not, therefore, either novel or innovative. (xxvii) Though the packs of the defendants' Nano Sulf- WG product itself indicated that its composition was identical to that of the plaintiff's FERTIN WG, the plaintiff had its product, as well as the defendants' product, tested by Jubilant Pharma & Chemical Lab (OPC) Pvt. Ltd. (JPCL), an independent laboratory. The test report dated 14 June 2019 of JPCL indicated that the product contained (a) 91.23% Sulphur content by mass, (b) 8.04% dispersing agent concentration by mass, (c) particle size distribution as under: (i) D10 value: 0.587 µ (ii) D50 value: 5.171 µ and (iii) D90 value: 20.328 µ, with (i) 1.16% granules passing through 0.1 mm sieve, (ii) 67.15% granules retained on 0.1 mm sieve, (iii) 31.69% granules retained on 0.15 mm sieve and (iv) nil granules retained on 2.5 mm sieve. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 20 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (xxviii) The JPCL report was shared with Dr P K Patanjali, former Head Formulation Scientist at the Institute of Pesticide Formulation Technology (IPFT). Dr Patanjali also testified, on affidavit, that the defendants' product infringed the suit patent. From JPCL's test report and Dr Patanjali's affidavit, it became apparent that the defendant's product contained 91.23% by mass of Sulphur and 8.04% by mass of dispersing agent, with about 99% of the granules of 0.1 mm to 2.5 mm in size and almost 54% of particles between 2 µ and 12 µ in size. These parameters being within the parameters of the claim in the suit patent, it was clear that Nano Sulf-WG infringed the suit patent. (xxix) The defendants were, therefore, infringing the suit patent within the meaning of Section 48 of the Patents Act, 1970. (xxx) On merits, on the aspect of validity of the suit patent vis- à-vis the claim in App 655, it is submitted as under: (i) App 655 is a fungicide, for foliar application, whereas the compound in the suit patent is a fertilizer for soil application. (ii) In App 655, Sulphur is converted to SO2, and remains on the leaves. In the suit patent composition, sulphur is converted to sulphate by microorganisms present in the soil, for assimilation by the roots of the plant. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 21 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (iii) App 655, inasmuch as it is a fungicide, teaches a larger particle size of 0.1 to 20 µ, so as to cover larger foliar area and exhibit greater fungicidal action. (iv) Sulphur, in the soil, as provided by the composition in the suit patent, is converted into sulphate by soil microorganisms. In the case of App 655, there is no conversion of sulphur into sulphate, when it is used as a fungicide by way of foliar application. (v) Though App 655 recognizes that fungicidal compositions containing 80-82% sulphur were conventionally manufactured in WDGs 5 to 10 µ in size, it teaches that such size and range adversely affects the bioavailability of sulphur as a fungicide and, therefore, suggests increasing the particle size. App 655, therefore, taught away from the suit patent, and not towards it. That apart, App 655 does not deal with dispersibility, or conversion of sulphur into sulphate. (vi) It would not be obvious, for a person skilled in the art, from the teachings in App 655, to synthesis the suit patent, by loading sulphur to 98% and keeping particle size in the range of 2 to 12 µ. Besides, the fact that sulphur is inflammable and explosive would also deter a person skilled in the art to reduce the particle size of Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 22 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 sulphur or increase its loading, beyond that taught by App 655. (vii) The observation, in App 655, that sulphur 90% w/v was already known, was in the context of fungicide. The suit patent was not for sulphur, but for a composition comprising sulphur loading coupled with recommended particles and granule size. It is the composition as a whole which is inventive. The onus is on the defendants to establish that the composition, as a whole, is obvious from prior art. The mere fact that an individual constituent of the composition may be obvious, or known, cannot make the entire composition obvious and therefore invalid. The combination of known integers could also be new and inventive. Reliance is placed, for this context, on the judgment in F. Hoffmann-La Roche Ltd v. Cipla Ltd9 ("Roche", hereinafter). (viii) Even if, therefore, sulphur-based fertilizers, with over 90% sulphur loading were known in the prior art, they failed to provide the solution provided by the suit patent. App 655 did nothing towards improving of dispersibility or conversion of sulphur into sulphate by any different mode of oxidation other than oxidation by the soil bacteria Thiobacillus, which acted when the composition in the suit patent was applied to the soil. Signature Not Verified 9 2016 (65) PTC 1 (Del) (DB) Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 23 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (ix) The knowledge of agricultural compositions containing 90% sulphur, even if existing prior in point of time, was in the context of fungicides, and not in the context of fertilisers. (xxxi) Reliance was placed, by the defendants, on Fertiliser Control Order dated 16 December 2006 (hereinafter referred to as "the FCO 2006"), which permitted use of sulphur of up to 90% by weight in the form of powder or as granules. The reliance was misplaced. The FCO 2006 merely recommended a minimum standard of sulphur composition (90% by weight) in powder or granules-based server compositions. Further, the FCO 2006 referred to a particle size of 4 mm (4000 µ) and the use of Bentonite as an inert filler. The suit patent was not restricted to envisaging a higher percentage of sulphur in the final product but included other essential elements in Claim 1. The FCO 2006 did not disclose the particle size, granule size, type of formulation and high loading of sulphur. The FCO 2006 could not, therefore, be regarded as teaching or suggesting the features of the embodiments in the suit patent. (xxxii) The defendants had also cited Section 3(d)10 of the Patents Act. Section 3(d) has no application to the present case, 10 3. What are not inventions.--The following are not inventions within the meaning of this Act,-- *** (d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any Signature Not Verified new property or new use for a known substance or of the mere use of a known process, Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 24 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 as it pertains to a new composition, and not a new form of a known substance. (xxxiii) Inasmuch as the defendants had not explained why a person skilled in the art would, from the teachings in App 655, manufacture the fertiliser composition claimed in the suit patent, when App 655 did not even teach how to improve the rate of conversion from sulphur to sulphate. (xxxiv) The features in the invention claimed in the suit patent, which are absent in App 655, are, therefore, (a) the requisite teaching to arrive at the fertiliser composition claimed in the suit patent, (b) the requisite teaching to improve the efficacy of conversion of sulphur into sulphate, (c) increase loading of sulphur to 90%, (d) application of the teaching to soil, (e) reduction of particle size and range (in fact, App 655 taught to the contrary) and (f) therefore, increase of sulphur loading to 90% and reduction of particle size of sulphur. It was absurd to suggest that all these are apparent from the teachings in App 655 and the FCO 2006. (xxxv) The defendants had also placed reliance on an article published in September 1995 in the journal EXTOXNET, machine or apparatus unless such known process results in a new product or employs at Signature Not Verified least one new reactant. Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 25 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 as well as on an article titled Technical Bulletin: Oxidation of Elemental Sulphur in Soils by Boswell, et al. Neither of these taught, suggested or rendered the suit patent composition as obvious. None of them envisaged a combination of highly sulphur loading introduced particle size range, as envisaged by the suit patent, especially given the explosive character of sulphur. (xxxvi) Given the fact that the suit patent had been granted in several other international jurisdictions, and had weathered successfully a number of pre-grant or post-grant oppositions, a prima facie case for grant of injunction was in any case made out. The degree of proof which, in such circumstances, would have to be discharged by the defendants to unseat this prima facie case was extremely high. All that the defendants have done is to cite prior art which has already been considered by the Controller in earlier pre-grant and post-grant opposition proceedings and rejected. Citing the same prior art before this Court cannot make out a credible challenge to the validity of the suit patent. Reliance was also placed, in this context, on the affidavit of Dr. Zanuccoli who confirmed one of the most inventive features of the composition claimed in the suit patent as being the high concentration of sulphur with an extremely small particle size. (xxxvii) The fact of infringement stood established by the reports of the JPCL and Sriram Institute for Industrial Research Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 26 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (SIFIR), who found that the defendant's product contained all integers of Claim 1 of the suit patent. The fact of infringement was also corroborated by the affidavit of Dr. Patanjali. 5. For all the aforesaid reasons, Mr. Hemant Singh praised that, pending disposal of these suits, the defendants be restrained from manufacturing of selling any product, including Nano Sulf-WG, which infringes the suit patent. The legal position regarding grant of interim injunctions in patent suits 6. Before proceeding to the submissions of learned Counsel for the defendants, the legal position in that regard should be understood. 7. Somewhat peculiarly, the Patents Act does not define infringement. Section 49 states that patent rights are not infringed when the invention claimed in the patent is used temporarily or accidentally on foreign vessels, etc. The positioning of Section 49 indicates that the meaning of "infringement", for the purposes of patents, has to be gleaned from Section 48, which sets out the rights conferred on a patentee by the Patents Act. Where the subject matter of a patent is a product, as in the present case, Section 48(a) confers, on the patentee, "the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India". From this, it emerges that, if a third party, without the consent of the patentee, makes, uses, offers for sale, sells or imports into India, for Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 27 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 those purposes, the patented product, such act would amount to "infringement". 8. Section 107(1)11 of the Patents Act makes available, as a ground of defence in an infringement suit, every ground on which the patent may be revoked, under Section 64. The defendants in the present case invoke, in a sense, clauses (a), (d), (e), (f), (h), (i) and (j)12 of Section 64(1). 9. Thus, if a defendant in an infringement suit can lay a challenge to the validity of the plaintiff's patent on any of the grounds envisaged 11 107. Defences, etc. in suits for infringement. - (1) In any suit for infringement of a patent, every ground on which it may be revoked under Section 64 shall be available as a ground for defence. 12 64. Revocation of patents. - (1) Subject to the provisions contained in this Act, a patent, whether granted before or after the commencement of this Act, may, be revoked on a petition of any person interested or of the Central Government or on a counter-claim in a suit for infringement of the patent by the High Court on any of the following grounds, that is to say,-- (a) that the invention, so far as claimed in any claim of the complete specification, was claimed in a valid claim of earlier priority date contained in the complete specification of another patent granted in India; *** (d) that the subject of any claim of the complete specification is not an invention within the meaning of this Act; (e) that 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 priority date of the claim or to what was published in India or elsewhere in any of the documents referred to in Section 13; (f) that the invention so far as claimed in any claim of the complete specification is obvious or does not involve any inventive step, having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of the claim; *** (h) that the complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed, that is to say, that the description of the method or the instructions for the working of the invention as contained in the complete specification are not by themselves sufficient to enable a person in India possessing average skill in, and average knowledge of, the art to which the invention relates, to work the invention, or that it does not disclose the best method of performing it which was known to the applicant for the patent and for which he was entitled to claim protection; (i) that the scope of any claim of the complete specification is not sufficiently and clearly defined or that any claim of the complete specification is not fairly based on the matter disclosed in the specification; (j) that the patent was obtained on a false suggestion or representation; Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 28 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 in Section 64(1), he may seek, on that basis, to defend himself against the charge of infringement laid by the plaintiff. 10. Thus far, the statute is clear, and comprehensible. Of greater importance, and relevance, however, is the nature, and the strength, of the defendant's challenge to the validity of the plaintiff's patent, as envisaged as a ground of defence under Section 107(1). 11. It has been held, classically, that the defendant has only to raise a "credible challenge" to the validity of the suit patent to successfully ward off a prayer for interim injunction. It must be shown, expressed otherwise, that the validity of the suit patent is "vulnerable" to challenge. In F. Hoffmann-La Roche Ltd v. Cipla Ltd13, it was held: "55. The question before this Court is when can it be said that the defendant has raised a credible challenge to the validity of a patent held by the plaintiff in an infringement action? During the course of the argument it was suggested by counsel that the challenge had to be both strong and credible. Also, the defendant resisting the grant of injunction by challenging the validity of the patent is at this stage required to show that the patent is "vulnerable" and that the challenge raises a "serious substantial question" and a triable issue. Without indulging in an exercise in semantics, the Court when faced with a prayer for grant of injunction and a corresponding plea of the defendant challenging the validity of the patent itself, must enquire whether the defendant has raised a credible challenge. In other words, that would in the context of pharmaceutical products, invite scrutiny of the order granting patent in the light of Section 3(d) and the grounds set out in Section 64 of the Patents Act 1970. At this stage of course the Court is not expected to examine the challenge in any great detail and arrive at a definite finding on the question of validity. That will have to await the trial. At the present stage of considering the grant of an interim injunction, the defendant has to show that the patent that has been granted is vulnerable to challenge. Consequently, this Court rejects the contentions of the plaintiffs on Signature Not Verified 13 159 (2009) DLT 243 (DB) Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 29 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 this issue and affirms the impugned judgment of the learned Single Judge." (Emphasis supplied) 12. Contradistinguishing the position from that which obtains under the Trade Marks Act, 1999, another Division Bench of this Court has, very recently, observed, in Freebit AS v. Exotic Mile Pvt Ltd14, thus: "22. It is also material to note that unlike the Trade Marks Act, 1999, where grant of a trademark leads to a presumption of its validity; grant of patent does not lead to any statutory presumption as to its validity. Thus, if a defendant raises a credible challenge to the validity of the patent, the same is relevant for deciding whether any interim orders restraining the defendant from using the patent in question, is warranted." 13. It is also settled that, while dealing with an application for interlocutory relief, the Court is not expected to scan the entire evidence, and balance the evidence of one side against the other, threadbare, thereby leaving little, if anything, for being examined during and after trial. The matter has to be viewed prima facie. In Wander Ltd v. Antox India Ltd15, the Supreme Court held that "usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence." 14. While adjudicating applications for grant of interim relief in patent suits, it would be appropriate to bear in mind the following 14 MANU/DE/1007/2024 Signature Not Verified 15 1990 Supp SCC 727 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 30 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 exordium, contained in Monsanto Technology LLC v. Nuziveedu Seeds Ltd16: "21. Manifestly, the counterclaim of the defendants was never considered by the learned Single Judge as only notice had been issued on the same. The plaintiffs had preferred an appeal against the nature of the injunctive relief with regard to the issue of licence fee/trait value, now conceded by the plaintiffs. We see no reason to reject the submission of Dr Singhvi that it stands to reason why the plaintiffs would have consented to a summary adjudication of an existing patent and risk losing the same without any merit adjudication. The defendants themselves had contended in their appeal that the issues were complicated requiring expert evidence to be considered in a full-fledged trial. The Division Bench therefore ought to have confined its adjudication to the question whether grant of injunction was justified or unjustified in the facts and circumstances of the case. The Division Bench ought not to have examined the counterclaim itself usurping the jurisdiction of the Single Judge to decide unpatentability of the process Claims 1- 24 also in the summary manner done. Summary adjudication of a technically complex suit requiring expert evidence also, at the stage of injunction in the manner done, was certainly neither desirable nor permissible in the law. The suit involved complicated mixed questions of law and facts with regard to patentability and exclusion of patent which could be examined in the suit on the basis of evidence. 22. Section 64 of the Act provides for revocation of patent based on a counterclaim in a suit. It necessarily presupposes a valid consideration of the claims in the suit and the counterclaim in accordance with law and not summary adjudication sans evidence by abstract consideration based on textbooks only. The Civil Procedure Code provides a detailed procedure with regard to the manner in which a suit instituted under Section 9, including a counterclaim has to be considered and adjudicated. The Code mandates a procedure by settlement of issues, examination and cross-examination of witnesses by the parties, including discovery/inspection of documents, culminating in the hearing of the suit and decree. A suit can be disposed of at the initial stage only on an admission inter alia under Order 12 Rule 6 or when the parties are not in issue under Order 16 Rule 1 and the other grounds mentioned therein, none of which are applicable herein. We are therefore satisfied that the Division Bench ought not to have disposed of the suit in a summary manner by relying on documents only, extracted from the public domain, and not even Signature Not Verified 16 (2019) 3 SCC 381 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 31 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 filed as exhibits in the suit, much less examination of expert witnesses, in the facts of the present case. There is no gainsaying that the issues raised were complicated requiring technological and expert evidence with regard to issues of chemical process, biochemical, biotechnical and micro-biological processes and more importantly whether the nucleic acid sequence trait once inserted could be removed from that variety or not and whether the patented DNA sequence was a plant or a part of a plant, etc. are again all matters which were required to be considered at the final hearing of the suit." (Emphasis supplied) 15. In its order in AZ Tech (India) v. Intex Technologies (India) Ltd17, the Supreme Court sounded this note of caution: "1. Having read the order of the High Court of Delhi dated th 10 March, 2017 passed in FAO(OS) No. 1/2017 we find that it is virtually a decision on merits of the suit. We wonder if the High Court has thought it proper to write such an exhaustive judgment only because of acceptance of the fact that the interim orders in Intellectual Property Rights (IPR) matters in the Delhi High Court would govern the parties for a long duration of time and disposal of the main suit is a far cry. This is a disturbing trend which we need to address in the first instance before delving into the respective rights of the parties raised in the present case." 16. The Division Bench of this Court took note of these views expressed by the Supreme Court in para 15 of the report in Astrazeneca AB v. Intas Pharmaceuticals Ltd18, thus: "15. Supreme Court, in order dated 16th August, 2017 in Civil Appeal No. 18892/2017 titled AZ Tech (India) v. Intex Technologies (India) Limited, commented on the disturbing trend, of the orders of disposal of applications for interim relief in Intellectual Property Rights matters governing parties for a long time, with exhaustive judgments, virtually on merits of the suit, being written and expressed the need for addressing the said malady. In fact, suo moto Writ Petition (Civil) No. 8/2017 titled Re: Case Management of Original Suits, was initiated in pursuance to the said order and in which proceedings this Court informed the Supreme Court of the remedial measures being taken. 17 2017 SCC OnLine SC 2143 Signature Not Verified 18 (2021) 87 PTC 374 (DB) Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 32 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 It was thus felt that the hearing of arguments in these appeals should not go on endlessly and the order/judgment disposing of these appeals, should not be exhaustive." (Emphasis supplied) 17. More recently, the Supreme Court again reiterated the same sentiment, in Pernod Ricard India Pvt Ltd v. United Spirits Ltd19, thus: "5. At the insistence of counsel for the petitioner, we clarify that it is well settled proposition of law that decisions on interlocutory applications are only made to protect rival interests pending suit. Somehow the interim applications itself are treated as final decision but it is not so. In all such cases, interim arrangements should be made and the trial should proceed rather than to spend time only on interlocutory applications. That protects the petitioner against the apprehension that the impugned judgment may be cited in other Court qua petitioner's cases of a similar nature." 18. That said, there are IP suits and IP suits. There is no gainsaying that, in many - indeed, most - cases, the axe falls, this way or that, with the interim order, and there is little that survives thereafter. In a vast majority of cases, the scales tilt so heavily, following an interim order, that the parties come to the bargaining table. Much, therefore, turns on interlocutory orders in intellectual property matters, and Courts may, therefore, be forgiven if these orders are more prolix than interlocutory orders passed in other suits. 19. I have chosen to enter this prefatory note, here, because, in the present case, submissions, of fact and law, have travelled so far outside the peripheries of legitimate interlocutory jurisdiction, that a note of circumspection is required to be struck. Signature Not Verified 19 2023 SCC OnLine SC 1838 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 33 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 20. I have my serious doubts regarding the advisability, or even permissibility, of placing reliance on "expert affidavits" while deciding applications for interlocutory relief in patent suits, and I think the above passages from Monsanto Technology express similar misgivings. In the present case, both sides have placed reliance on affidavits of experts to support their case. Neither side admits the veracity or correctness of the affidavits cited by the other. The affidavits have not even been subjected to the exercise of admission and denial. The experts have not been cross examined. I sincerely doubt whether, in such circumstances, the prayer of the appellant for grant of interim relief, and the merits of the opposition by the defendant to such grant, can be decided on the basis of such "expert evidence". 21. Regarding the nature and character of expert evidence, the Supreme Court, in State of Himachal Pradesh v. Jai Lal20, observed thus: "18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. 19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has Signature Not Verified 20 (1999) 7 SCC 280 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 34 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 to face cross-examination. This Court in the case of Hazi Mohammad Ekramul Haq v. State of W.B.21 concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons." (Emphasis supplied) 22. Albeit in the facts of that case, the Supreme Court, in State of Maharashtra v. Damu22, held that "without examining the expert as a witness in court, no reliance can be placed on (his testimony) alone". Relying on this principle, the Supreme Court, in Ramesh Chandra Agrawal v. Regency Hospital Ltd23, held thus: 21. In State of Maharashtra v. Damu, it has been laid down that without examining the expert as a witness in court, no reliance can be placed on an opinion alone. In this regard, it has been observed in State (Delhi Admn.) v. Pali Ram24 that "no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him". 23. Specifically in patent infringement suits, fundamentally only two issues arise for consideration, especially at the interim stage. They are, firstly, whether the defendant's product infringes the plaintiff's patent, and, secondly, whether the defendant has set up a credible challenge to the validity of the plaintiff's patent, as would render it vulnerable to invalidation under Section 64 of the Patents Act. 24. Both these considerations involve, essentially, comparison. Infringement analysis involves comparison of the defendant's product 21 AIR 1959 SC 488 : 1959 Supp (1) SCR 922 22 (2000) 6 SCC 269 23 (2009) 9 SCC 709 Signature Not Verified 24 (1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 35 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 with the suit patent, and validity analysis involves comparison of the suit patent with prior art. In either case, the comparison is to be premised, fundamentally, on the claims and disclosures in the suit patent, and in the prior art. If, on the basis of such comparison, the defendant manages to set up a credible challenge to the validity of the suit patent, injunction cannot be refused by relying on untested and disputed expert affidavits, with the expert cited by each party deposing wholeheartedly in favour of the party concerned. Primacy has to be accorded to the recitals contained in the complete specifications of the patent. 25. I do not, therefore, propose to advert, in this order, to the affidavits on which either side has placed reliance, as, till the deponents of the affidavits are tested by cross examination, such affidavits cannot, in my opinion, constitute the basis either for grant, or for rejection, of interim injunction. 26. With that note, I now proceed to the submissions of learned Counsel for the defendants. Submissions of Mr. Bansal 27. Mr. Bansal, appearing for Defendant 2 in CS (Comm) 525/2021, submits thus: (i) The very title of the suit patent, "Novel Agricultural Composition", encompasses both fertilizers and fungicides. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 36 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (ii) The original claim in the suit patent, as filed with the Patent Office, made no mention of conversion of sulphur to sulphate, and claimed the concentration of sulphur, as the active ingredient, to be 40 to 98%. The concentration was later amended to 82 to 98%. The Summary of the Invention as originally filed also declared that the composition was used as at least one of "a fertilizer composition, a nutrient composition, a plant strengthener composition, a plant protectant composition, a soil conditioner composition and a yield enhancer composition". Plant protectant compositions naturally include fungicides. The original Summary of the Invention also disclosed that, "according to an embodiment, the invention also relates to a method of treating the plant by applying the agricultural composition primarily to the basal and also to the foliar parts of the plant." Thus, the composition claimed in the unamended complete specifications of the suit patent was clearly obvious from App 655. (iii) To emphasize that the features of the claimed composition in the suit patent were already part of App 655, Mr. Bansal drew attention to the following recitals in the "Background of the Invention" in the complete specifications of App 655: Fungicides are a known art for years, specially Sulphur fungicides. Typically the known product i.e., Sulphur (WP) or Sulphur (WG) contains Sulphur technical of about 60% to 90%) along with blends of wetting/suspending agents and fillers. More typically in India the product contains 80% Sulphur. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 37 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 ***** The conventional product contains 80% Sulphur and the particle size is typically approximately in the range of 4 to 15 microns for - WP & 4-10 microns for WG. ***** Sulphur is a contact fungicide, where the efficacy of the product is improved when the surface area of the product is improved. Due to the narrow particle size range of the particles of product the efficacy of the product is restricted. ***** Over the years as man learnt of the hazards of using pesticides and the risks associated with this to mankind there is a growing need to make the same products which have been used for years in such an improved form so that it is more efficient letticacious and reducing the risk to the user, thus a further improved composition having better physical properties and more efficient bioefficacy properties which is understood to be due an efficient particle size as a result of increasing the range of the particles and having more particles in the range of 0.5 to 4 microns which in turn increases the surface area of the sulphur particles. Due to the product being a contact fungicide this increase in contact area increases the bioeffectivness of the product. ***** The inventor has carried out continuous research to overcome the drawbacks of the above product and processes in the literature. The inventor has come out with an further improved process having initial process upto manufacture fine particles of sulphur as per art known to the industry. However for an improved Sulphur WG formulation, a finished product, the process is diverted from known art to an improved version to provide a product having an Sulphur composition with smaller particle size with a wider range of particle size, but bigger Granule size, better bioefficacy, every particle being coated with dispersing agent, wetting agent, free flowing (pourable) properties, reducing dust by agglomeration, reducing inhalation toxicity. This is also achieved by improving chemical formulation. ***** Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 38 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 The principle object of this invention is to provide an improved process of manufacturing fungicide composition that is more biologically efficacious than the conventiional conventional formulation known in the art. Also the invention has a larger particle size range with more percentage particles in the range of 0.5 to 4 microns & in turn. ***** Another object of the invention is to provide an improved process of manufacturing Sulphur WG formulation having larger surface area for the same weight of the particles resulting in lesser dosage. ***** Even though we have reduced particle size we have made correct particle size range not to cause phytoxicity. Also by a bigger size range the oxidation of sulphur particles is for a longer time. Among other things, the "Background of the Invention" in the complete specifications of App 655 disclosed that Sulphur in 60 to 90% concentration w/w could act as a fungicide. (iv) Mr. Bansal also drew attention to the "Description" of the claim in the complete specifications of App 655, and the actual claim, which read thus: Description Appearance: The product is brownish in colour and in a granular, dry flowable form. Also known as Water Dispersible Granule (WG) or WDG. The accepted nomenclature is "WG" Properties Specification Sulphur content is: 80% min Suspensibility : 80% min Wetting time : 60 sec max Acidity less than 0.02% Granule above 200 microns: 95% Signature Not Verified Flow point: 0 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 39 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Particle size range 99% 0.5 micron to 7 microns Benefits 1) Better bioefficiency 2) More surface area is available 3) Less quantity of product is required 4) Better flowability 5) Practically dust free 6) Reduced inhalation toxicity 7) Better bulk density 8) Reduces Sulphur residue to the environment 9) Less injurious to human being due to lesser inhalation toxicity 10)Larger particle size range 11)Better adhesion property 12)Product is adapted to use practices by farmers WE CLAIM: 1) An improved fungicidal/miticide formulation consisting of the following ingredients which are mixed thoroughly to obtain an improved formulation for making granules from micro particles obtained by wet grinding the aqueous suspension coating and subsequently drying in spray/fluidized bed spray and fluid bed spray granulator or a combination thereof to get water Dispersible Granules. Which will have better bioefficiency, more available surface area in turn reducing amount of product used. The product will have better flowability, be practically dust free & hence reduced inhalation toxicity to human being during manufacture & use by farmer. The product has smaller average particle size but larger range of particles, better sticking properties, better dispersion & leaves lesser residue in the soil & is hence user/friendly & environmentally friendly. Unlike the conventional product which has a smaller particle size range this product has a larger range where the most particles are from 0.1 microns to 20 microns. The aqueous suspension consists of 80% by weight (dry basis) of the (Sulphur active ingredient;) between 0.5 to 5% of a wetting agent of the group of lignin derivatives; between 0.5 to 5% of the dispersing agent of the group of phenol/naphthalene; and/or polyoxyethelene derivatives and balance 6% to 35% of the filler along with required binding agents. Also anti foaming agent, if required between 0.02 to 1.4%. This slurry when dried as described above Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 40 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 forms a free flowing formulation with less than 3% moisture giving a granule size above 200 microns (0.2mm) and reducing dust. (v) Before 2006, the plaintiff was, in fact, marketing and clearing the product claimed in the suit patent as a fungicide. The plaintiff reclassified its product as a fertilizer to avail Central Excise duty exemption. Reliance was placed, in this context, on the judgment of the Customs, Excise and Service Tax Appellate Tribunal (the CESTAT) in Sulphur Mills Ltd. v. Commissioner of Central Excise25. (vi) In the "Description of Related Art" in the complete specifications in the suit patent, it was stated thus: One problem associated with the use of these conventional compositions is that they need to be applied in very high dosages. The applicable dosage of these conventional compositions per acre is very high and can extend from about 10 kg / acre for Sulphur bentonite compositions to about 25 kg per acre for Sulphate based fertilizers and goes all the way to more than 100 kg/acre in case of gypsum. As compared to this, in the case of the composition covered by the suit patent, the complete specifications read: In cereal crops such as rice and wheat a dosage of about 3 to 4 g/square meter in rice nurseries was applied 10 days after seed sowing at the time of transplantation exhibited a nursery crop with profuse root development and with healthy and strong seedling. 3 to 4 g/sq m worked out to 12-16 kg/acre. There was, therefore, no advantage, in the composition claimed in the suit patent, over existing prior art. The plaintiff's contention that Signature Not Verified 25 2012 (285) ELT 375 (T) Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 41 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 use of the suit composition resulted in reduction of sulphur dosage in the soil was, therefore, incorrect. (vii) None of the examples provided in the complete specifications of the suit patent referred to conversion of sulphur into sulphate. They all claimed that the composition gave good results of suspension and dispersibility. (viii) Examples 4 and 5 in the complete specifications of the suit patent read thus: "Example 4: A slurry is obtained by blending about 65% of the sulphur active ingredient, about 5% phenyl naphthalene sulphonate, 25% polyvinyl pyrrolidone, 2.5% of lignosulfonate and about 2.5% of zinc in an effective amount of water. The slurry so formed is wet grinded in a suitable wet grinding equipment to obtain particles in the size range of about 2 microns to about 12 microns. The slurry is then dried in a fluidized bed drier and the particles are agglomerated to obtain the agricultural composition which is in the size range of about 0.1 mm to about 2.5 mm. The composition displayed good results of suspension and dispersibility (80%). Example 5: A slurry is obtained by blending about 70% of the sulphur active ingredient, about 7% phenyl naphthalene sulphonate, 20% polyvinyl pyrrolidone, 0.5% of lignosulfonate and about 2.5% of naphthalene formaldehyde condensate in an effective amount of water. The slurry so formed is wet grinded in a suitable wet grinding equipment to obtain particles in the size range of about 1 micron to about 12 microns. The slurry is then dried in a fluidized bed drier and the particles are agglomerated to obtain the agricultural composition which is in the size range of about 0.1 mm to about 2.5 mm. The composition displayed good results of suspension and dispersibility (82.5%)." Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 42 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 In these examples, Sulphur was used only to the extent of 60% to 70% w/w. (ix) A report, dated 16 June 2009 of the Indian Institute of Vegetable Research (IIVR) disclosed that COSAVET DF 80 WDG, with Sulphur 80% WDG, could also act as a fertilizer. The report compared the efficacy of COSAVET DF with FERTIS 90 WG, Gromor and Gypsum as a source of sulphur for potato. Efficacy of FERTIS 90 WG was found to be superior not because of any particular particle size, but merely because the particle size was "very fine". The report precisely read: "The superior efficacy of Fertis 90 WG is because of its higher amount of sulphur and very fine particle size which allows much quicker conversion of sulphur to sulphate (compared to the other sulphur sources) which is the only form in which sulphur can be taken up by plants. The plants being relatively healthy late blight attack was minimal." (x) Fungi, or bacteria, would not be able to distinguish between a composition containing 80%, and one containing 90%, of sulphur. What was crucial was the amount, not the concentration, of sulphur. (xi) Thus, if sulphur, of requisite concentration, was applied to the soil, it would act as a fertilizer and, if applied to leaves, it would act as a fungicide. (xii) The following table demonstrates how the composition claimed in the suit patent is anticipated by App 655: Signature Not Verified Impugned DI-655 (pg. 50-51 Remark Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 43 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Patent [page pg. of Plaintiff 20 of Plaintiffs' Documents filed Docs filed along along with Plant) with Plaint) Particle Size 2- Particle Size: 0.1 to Smaller particle 12 microns 20 microns size with wider range of particle size from 0.1 To 20 micron, with more particles in the range of 0.5 to 4 microns, Ref. Pg 43, 2nd & 3rd para of the Plaintiff's docs. Claimed range is a subset of D1 without any technical enhancement. Granule Size Granule size: Bigger granule size: 0.1-2.5 mm (100 above 200 microns Ref. Pg. 43 2nd para to 2500 microns) of the plaintiff's docs. Claimed range is overlapping with D1 FORM- Water FORM- Water Same as D1 Dispersible Dispersible Granules Granules Sulphur Sulphur Content Claimed range is a Content- 82%- - 80% Minimum subset of D1 98% Sulphur to Oxidation of Oxidation means sulphate Sulphur particles; conversion of conversion Ref. Pg 43 of Sulphur to sulphate Plaintiff's Docs. i.e. is S to SO4 Dispersing agent Dispersing agent Claimed range is in the range of 2 0.5 to 5% overlapping with to 18% DI Agricultural Fungicidal/miticide Fungicide & composition composition miticide are also a wherein the type of agricultural composition is composition and fertilizer, nutrient, fall under the plant category of plant strengthener, protectant. Signature Not Verified plant protectant Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 44 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (includes fungicide), soil conditioner, Ref. Pg 9, para 2 of Plaintiff's docs. (xiii) The suit patent is also invalid as being hit by Section 3(d) of the Patents Act. Reliance is placed, in this context, on para 19 of the plaint, which admits that the suit patent is merely a new use being put to App 655, which is a fungicide: 19. It is submitted that some water dispersible granules of Sulphur - both fungicidal and fertilizer -were known in the art. One such fungicidal composition was disclosed in Plaintiff's own Indian Patent Application No. 655/MUM/2000 (hereinafter 655 Application) titled 'An improved fungicide/miticide, sulphur formulation in the dry flowable form (WG) and a method of manufacturing the same. It is pertinent to mention herein that the said application ('655 application) was cited as closest prior art during third party pre grant oppositions to the suit patent and has been distinguished by the Controller vide its order dated 11.04.2017 thereby rejecting this prior art as affecting neither novelty or inventive step of the claimed invention under the suit patent. The '655 application discloses a fungicide composition comprising 80% Sulphur on a dry basis as described in claim 1 thereof. '655 application further discloses that the composition, as described and claimed therein, was effective in reducing the intensity of diseases on the aerial parts of plants at a low concentration. On the other hand, the subject patent provides a plant growth or fertilizer composition with a high loading of sulphur in the range of 82% to 98%. The 655 application nowhere discloses a composition with a high loading of sulphur as high as 82% to 98% by weight. The 655 application provides a foliar application of Sulphur for pest control, whereas the subject patent provides sulphur composition for soil application to facilitate sulphate conversion for ready uptake by the plants for their growth and high yield. The suit composition and the composition claimed in App 655 were both WDGs with overlapping particle size, manufactured Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 45 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 using the same wet grinding technology, using the same equipment. (xiv) There was no comparison in the yield obtained by using Sulphur particles of size 2-12 µ, claimed in the suit patent, out of the particle size of 0.1-20 µ claimed in App 655. (xv) Examples 4 and 5 in the suit patent contain 65% and 70% of Sulphur respectively. As such, even with Sulphur below the claimed composition of 82-98%, the plaintiff was obtaining the fertilizer effect. Section 10(4)26 of the Patents Act deemed examples given in the complete specifications to be the best mode of performing the claimed invention. Thus, the claimed suit composition was not supported by the Examples provided. Examples 4 and 5 also discredited the plaintiff's claim that it 26 (4) Every complete specification shall - (a) fully and particularly describe the invention and its operation or use and the method by which it is to be performed; (b) disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection; and (c) end with a claim or claims defining the scope of the invention for which protection is claimed. (d) be accompanied by an abstract to provide technical information on the invention: Provided that-- (i) the Controller may amend the abstract for providing better information to third parties; and (ii) if the applicant mentions a biological material in the specification which may not be described in such a way as the satisfy clauses (a) and (b), and if such material is not available to the public, the application shall be completed by depositing the material to an international depository authority under the Budapest Treaty and by fulfilling the following conditions, namely:-- (A) the deposit of the material shall be made not later than the date of filing the patent application in India and a reference thereof shall be made in the specification within the prescribed period; (B) all the available characteristics of the material required for it to be correctly identified or indicated are included in the specification including the name, address of the depository institution and the date and number of the deposit of the material at the institution; (C) access to the material is available in the depository institution only after the date of the application for patent in India or if a priority is claimed after the date of the priority; (D) disclose the source and geographical origin of the biological material Signature Not Verified in the specification, when used in an invention. Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 46 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 was obtaining a unique fertilizer effect by loading Sulphur to the extent of 82-98%. (xvi) Moreover, the Examples provided in the complete specifications of the suit patent emphasized only dispersibility as an inventive feature of the claim in the suit patent. (xvii) The suit composition lacked an inventive step vis-à-vis prior art, within the meaning of Section 2(1)(ja)27 of the Patents Act. This is sought to be demonstrated in a tabular fashion, thus: Impugned Patent [Pg. Prior art documents relied upon 20 of Plaintiff's Docs by Defendant No.2 filed along with Plaint] Sulphur Content: 82% a) D1: 80% minimum. [Pg. 50 of to 98% Plaintiff's Docs filed along with Plaint]. a) US 5,599,373 Patent of Pietro Zanuccoli: 93% of Sulphur [Pg. 7- 10 of present written submission and submitted to the Hon'ble Court during court proceeding]. b) Gazette of India Notification dated 26.12.2006 (Pg. 228-231 Ref.Pg. 230 of Defendant's Document dated 13.07.2019 filed in 5 Volumes) 90% powder and granular. c) Reply Received from Ministry of Agriculture and Farmers Welfare to RTI in Patent No.282429 (Pg. 349-350, Ref. Pg.349 of Defendant's Document dated 13.07.2019 filed in 5 Volumes) 90% powder and granular. 27 (ja) "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a Signature Not Verified person skilled in the art; Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 47 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Particle Size: 2-12 b) D1 0.1-20 Micron [Pg. 50 of micron Plaintiff's Docs filed along with Plaint]. c) Background of D1: 4-10 micron [Pg. 50 of Plaintiff's Docs filed along with Plaint]. Granule size: 100-2500 d) D1: Above 200 micron [Pg. 50 micron (0.1-2.5 mm) of Plaintiff's Docs filed along with Plaint]. a) Gazette of India, FCO notification dated 28th December 2006: 1 mm to 4 mm i.e 1000- 4000 micron 2006 (Pg. 228-231 Ref. Pg. 230 of Defendant's Document dated 13.07.2019 filed in 5 Volumes). Form: Water Dispersible a) D1: Water dispersible granules granules Process: Wet grinding a) D1: Wet grinding method method Use: Agricultural a) D1: Fungicide (a type of composition agricultural composition) b) US 5,599,373 Patent of Pietro Zanuccoli : Soil corrective or soil conditioner i.e. fertilizer. c) Gazette of India, FCO notification dated 28th December 2006: Straight Sulphur Fertilizers Sulphur to Sulphate a) D1: Oxidation of Sulphur. conversion b) US 5, 599,373 Patent of Pietro Zanuccoli: Once sulfur is present in soil in finely divided form, it is converted into sulfate icons by sulfoxidizing microorganisms, like the bacteria of the kind Thiobacillus. Particle size & surface e) D1: Another object of the area correlation: invention is to provide an smaller particle size to improved process of give larger surface area manufacturing Sulphur WG formulation having smaller individual particles (contained in granule) which is an agglomeration of particles, thus much higher surface area to give Signature Not Verified better coverage thereby using Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 48 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Sulphur Chemical product on the plant while in use [Pg.50 of Plaintiff's Docs filed along with the Plaint]. (xviii)The teaching and motivation for using sulphur in 90% concentration w/v as a fertilizer was already available in the following prior art: (a) the FCO specification for sulphur 90% granule and powder, which was published in December 2006, even before the application for the suit patent was filed, (b) App 655, which taught wet grinding technology when dealing with sulphur to avoid fire hazard, as sulphur was explosive; ergo, carving out, from the complete specifications in App 655, 82-98% Sulphur content, 2-12 µ particle size and 0.1 to 2.5 mm granule size (which was overlapping) was neither surprising nor invented by the plaintiff, and (c) the plaintiff's own laboratory report, which showed maximum particles falling between 0.1 and 20 µ (as is reflected by the D90 figure being 20.326, meaning 90% of particles are of 20.326 µ or less), with 51% particles falling in the overlapping range of 2 to 12 µ. The defendant manufactured Sulphur 90% as powder as per the FCO. Further, any person skilled in the art could club the teachings of App 655, using wet grinding technology, to manufacture 90% Sulphur to be used as a fertilizer from the teachings in App 655. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 49 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Submissions of Ms. Rajeshwari 28. Ms. Rajeshwari advanced the following submissions, to oppose the prayer for interim injunction: (i) That sulphur acts both as a fertilizer and as a fungicide is known prior to 2007. Ms. Rajeshwari relies on the article "Sulfur in organic farming" by Hans Marten Paulsen published in the Landbauforschung Volkenrode, Special Issue 283 in 2005 and on the Extoxnet Extension Toxicology Network article titled "Sulfur" published in September 1995, of which the latter envisaged use of Sulphur of 90% concentration w/w. In using sulphur as a fertilizer, therefore, no inventive step was involved. (ii) Oxidation of sulphur to sulphate is carried out naturally by the thiobacilli soil bacteria, without human intervention. Besides, as sulphur is dangerous to handle, it is administered as a formulation. Ms. Rajeshwari relies on the "Technical Bulletin: Oxidation of Elemental Sulfur in Soils" published by the Fertiliser Technology Research Centre of the University of Adelaide. (iii) It is also common knowledge that the smaller the particle size, the greater would be the oxidation, as the surface area would increase. Ms Rajeshwari again relies, for this, on the formulation. Ms Rajeshwari relies on the "Technical Bulletin: Oxidation of Elemental Sulfur in Soils" published by the Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 50 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Fertiliser Technology Research Centre of the University of Adelaide. (iv) Inasmuch as the use of Sulphur of 90% concentration w/w as a fertilizer was known in the prior art, the claim in the suit patent had to be limited to a formulation of particle size and granule size. (v) If cumulative teachings in prior art would lead one to the claimed invention, the claimed invention was invalid as being obvious from the prior art. Reliance was placed, for this purpose, on the judgment of this Bench in F.M.C. Corporation v. Natco Pharma Ltd28. (vi) App 655 taught (a) preparation of a sulphur formulation as a fungicide, (b) a sulphur formulation, with (i) 80% Sulphur, (ii) granule size greater than 200 µ and (iii) particle size of 0.1 to 20 µ, and (c) preparation by wet grinding method, which eliminated all problems associated with dry grinding including explosion and permitted use of particles of any size. Signature Not Verified 28 2021 SCC OnLIne Del 3647 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 51 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (vii) UK Patent Application GB 2185005 (GB'005) of Ivan Ivanovich Zozulye and others, published on 8 July 1987, taught the use of wet grinding, instead of dry grinding, to avoid explosion, and also taught that wet grinding would also yield fine particles. (viii) Prior art in the form of US 3920442 (US'442), 1975, US 5628800 (US'800),1997 and App 655 taught preparation of Sulphur granules using fluidized bed method, in which slurry is fed into a system, sprayed through an atomizer and exposed to hot air to obtain granules. This is known as "Spray Drying". (ix) The FCO dated 12 December 2006: (a) taught manufacture of powder or granules of 90% Sulphur for use as a fertilizer, (b) did not prescribe any dimensions in the case of powder, though some dimensions were prescribed for granules, and (c) forbade any person from manufacturing or selling Sulphur which did not conform to the FCO. (x) Thus, the following teachings were available in prior art to a person skilled in the art who wanted to prepare a Sulphur based formulation for use as a fertilizer: (a) that Sulphur can be used as a fertilizer, (b) that Sulphur formulations must be in granules, (c) that Sulphur could be used 90% w/w with other excipients, Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 52 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (d) that rapid oxidation would occur with fine granules, and (e) that wet grinding would yield finer granules. (xi) Thus, (a) in 1987, GB'005 dealt with the Sulphur wet grinding method, and also addressed the issues of explosion and fire hazard when Sulphur was used, (b) in 1997, US'764, GB'140 and US'373 dealt with the Sulphur wet grinding method, (c) prior to 2000, the notifications issued under the FCO 1985 regulated the strength at which Sulphur was manufactured and the purpose of its sale, and permitted sale of Sulphur of 80% strength as a fungicide, (d) App 655 claimed an improved fungicide composition in the form of WDGs, with Sulphur in the strength 60-90%, especially 80%, particle size between 0.1 and 20 µ, and granule size above 200 µ, and (e) the FCO of 16 December 2006 permitted the use of Sulphur in the concentration of 90% w/w as fertilizer in powder or granule form. (xii) The particle and granule size in the suit patent were, therefore, merely on obvious subset of the broad coverage of App 655. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 53 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (xiii) Such a selection patent would be valid only if the plaintiff were to demonstrate that, outside the selected range, the product would not act as a fertilizer, or that use of the product within the selected range resulted in surprising advantages or effects. No such data is presented by the plaintiff. Reliance was place, for this purpose, on (a) I.G. Farbenindustrie A.G.'s Patents29, (b) In re. Guenther K. Hoeschele30 and (c) Genentech, Inc. v. Hospira, Inc.31 (xiv) Without such data, the selection in the suit patent was obvious from prior art, as App 655 already suggested that reduction in particle size would increase oxidation, and the particle size range was within the range suggested in App 655. The person skilled in the art would, therefore, experiment around this range, and, on optimization, come up with the range envisaged in the suit patent. (xv) The claimed range of particle and granule size did not show any unexpected advantages. Even at lesser sizes, fertilizer effect was achieved. No unexpected results were shown to result as a consequence of using the range claimed in the suit patent. Reliance is placed, in this context, on In re. Woodruff32. The claimed range in the suit patent is, therefore, prima facie 29 [1930] 47 RPC 289 30 406 F. 2d. 1403 31 Decision dated 10 January 2010 of the US Court of Appeals for the Federal Circuit in Appeal from the USPTO, Patent Trial and Appeal Board in No. IPR2016-01837 32 Signature Not Verified 919 F. 2d. 1575 (Fed. Cir. 1990) Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 54 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 obvious and a mere ramification of prior art. Reliance is placed, for this purpose, on Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries33. (xvi) The submission that, owing to reduction in particle and granule size, the dosage of fertilizer required to be used had drastically reduced, was incorrect. Example 6 in the suit patent envisaged usage of fertilizer in the range of 12.14 to 16.187 kg/acre, which was within the range of 10 kg to 25 kg/acre used in the case of conventional fertilizer. (xvii) The suit patent did not either refer to the problem of possibility of explosion, or claim to provide a solution thereof. On the other hand, the wet grinding method for Sulphur formulations was obvious from GB'005 (in 1987), US'764 (in 1995), GB'140 (in 1996), US'373 (in 1997) and App 655. (xviii)The suit patent did not claim any special advantage owing to the cumulative effect of loading Sulphur to 90% and reducing granule and particle size. (xix) The defendants had, therefore, merely followed the process which was taught by App 655 and was, therefore, in the public domain. Analysis 33 Signature Not Verified (1979) 2 SCC 511 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 55 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 29. Applying the settled principles in this regard, I am of the view that the defendants have succeeded in making out a prima facie credible challenge to the validity of the suit patent as being vulnerable, within the meaning of Section 64 of the Patents Act. It is not necessary, therefore, to enter into the aspect of comparison of the claims in the suit patent with the product of the defendants. Salient features of claimed composition as per averments in the plaint and in complete specifications of suit patent 30. From the averments in the plaint, the following features of the composition claimed in the suit patent are highlighted. 30.1 The claimed composition is in the form of WDGs. These possess advantages over conventional agrochemical formulations owing to greater ease of use, pouring properties and granular nature. However, it is admitted, in para 19 of the plaint, that App 655 was also in the form of WDGs. 30.2 The suit composition facilitated almost instantaneous conversion of sulphur into sulphate for ready uptake by the plants. This overcame serious drawbacks in the conventional agrochemical formulations which could not provide yield proportional to the investment in procuring and applying the formulations. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 56 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 30.3 Para 22 of the plaint describes the composition claimed in the suit patent as "comprising an effective amount of sulphur active ingredient and at least one dispersing agent; wherein the composition is in the form of water dispersible granules having specific granule and particle size". This is detailed, somewhat, in para 24, which asserts that the composition claimed in the suit patent comprises suplhur as an active ingredient in the rate of 82 to 98% w/w, in the form of WDGs of size 0.1 to 2.5 mm, comprising particles in the rage of 2 to 12 µ. The three primary distinguishing features of the composition in the suit patent, as per the plaint, are, therefore, the amount of sulphur as an active ingredient, the granule size, and the particle size. These three qualities make the suit composition effective as a fertilizer, which facilitates ready uptake of sulphur as sulphate by the plants when administered in the soil. 30.4 Owing to these properties, as per para 27 of the plaint, enhanced crop yield is achieved by surprisingly reduced dosages, as compared to conventional formulations which have to be applied at higher dosages of about 10 kg/acre for Sulphur bentonite compositions to about 25 kg/acre for Sulphate based fertilizers, up to more than 100 kg/acre in the case of gypsum. Use in high dosages increases the possibility of leaching in the soil and the product becoming unavailable to the crop. 30.5 Moreover, the complete specifications of the suit patent claims that the larger size of the particles in conventional fertilizers makes them unsuitable for administration by drip and sprinkler irrigation, the Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 57 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 use of which is considerably increasing, as the larger particles may clog the pores of the nozzle. 30.6 Conventional compositions in the form of pellets and wettable powders, contends the specifications in the suit patent, do not exhibit uniform suspension resulting in uneven coverage on the plant and minimizing bio-efficacy of the product. 30.7 The specifications of the suit patent have, further to be applied two to three months in advance to ensure conversion into sulphate and its uptake by the plant, resulting in greater application and cost. Features of distinction App 655 as per the plaint 31. The plaint emphasizes the following features of distinction of the suit patent, vis-à-vis App 655. 31.1 App 655 discloses a fungicide composition, whereas the composition claimed in the suit patent is a fertilizer. 31.2 App 655 discloses a composition of 80% Sulphur on a dry basis, whereas the suit composition contained Sulphur concentration of 82 to 98% w/w. 31.3 App 655 was for foliar application, whereas the suit composition was for application in the soil. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 58 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 31.4 App 655 did not envisage conversion of sulphur into sulphate, which was the main raison d'etre of the suit patent. The suit patent facilitated conversion of sulphur into sulphate for ready uptake by the plants. Examples cited in the specifications in the suit patent 32. The examples provided in the specifications of the suit patent are of importance as, even as per the specifications, they illustrate the claimed invention, even they are not intended to be delimiting in nature. 32.1 Example 1 blends 91% of Sulphur with 0.5% phenyl naphthalene sulphonate, 1% polyvinyl pyrrolidone, 5.5% lignosulfonate and about 2% of an ethoxylated alkyl phenol in water. The slurry so formed in wet ground to obtain particles in the size range of 1 to 12 µ. The slurry is dried and particles agglomerated so that the resultant particles are in the size range of 0.1 to 2.5 mm. 32.2 Example 2 blends 84% of Sulphur with excipients in water. The slurry so formed is wet ground to obtain 2 to 12 µ particles and, after drying, results in the composition with size range of 0.1 mm to 2.5 mm. 32.3 Example 3 blends 91% sulphur with 9% phenyl naphthalene sulphonate in water. The slurry so formed is wet ground to obtain 2 to Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 59 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 12 µ sized particles which, after drying, results in a composition of size range 0.1 mm to 2.5 mm. 32.4 Example 4 blends 65% Sulphur with excipients in water. The slurry so formed is wet ground to obtain particles of size 2 to 12 µ which, after drying, results in granules of size 0.1 mm to 2.5 mm. 32.5 Example 5 blends 70% Sulphur with excipients in water. The slurry so formed is wet ground to obtain particles of size 1 to 12 µ which, after drying, results in granules of size 0.1 to 2.5 mm. 32.6 Example 6 blends 91% Sulphur with excipients in water. The slurry so formed is wet ground to obtain particles of size 1 to 12 µ which, after drying, results in granules of size 0.1 to 2.5 mm. 33. This makes it immediately apparent, as Ms. Rajeshwari correctly contends, that Sulphur composition for obtaining the favourable results, as a fertilizer, which the suit patent claims, is not necessarily required to be 82 to 98%. The examples with the suit patent also include Sulphur of 65% and 70% composition. This, by itself, dilutes considerably, the plaintiff's stand that one of the novel features of the suit patent is that it uses Sulphur in high concentrations of 82 to 98%. In fact, in each of the examples contained in the complete specifications of the suit patent, the process of generating particles from the blended product is the same. Particles are obtained by wet grinding, and drying is carried out on a fluidized bed drier. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 60 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 The sizes of the particles, or granules, which result, are merely the consequence of the grinding and drying process. Prior Art 34. App 655 34.1 Undoubtedly, App 655 claims a fungicide. 34.2 The "Background of the Invention" in App 655 declares that better physical properties, and greater bio efficacy, is achieved "due to an efficient particle size as a result of increasing the range of the particles and having more particles in the range 0.5 to 4 µ which in turn increases the surface area of the sulphur particles". 34.3 App 655 claims a composition with 80% minimum Sulphur content, 95% granules above 200 µ and 99% particles in the size range 0.5 to 7 µ. 34.4 The process for obtaining the final product of desired particle and granule size is thus described: "2 A normal sulphur 80 WG is produced by blending by rock/powdered Sulphur with dispersing/wetting agents etc. and suitable known fillers. This is made in to slurry by addition of water etc. and this slurry is further ground to fine micron size in bead mill (normally known as sand mill, dyno mill, turbo mill etc. on a particle of glass or other beads in a cylindrical, horizontal or vertical container.) This slurry is spray dried in a known art nozzle or disc atomize spray drying plant with most particles in range of 1 to 8 microns. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 61 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 3. Sulphur 80 WG is also manufactured by blending molten sulphur (temp. between 110° to 250° C) with adjuvants like dispersing/wetting agents etc. with or without filler and the molten mass is than solidified in a spray cooler in to granules with most particles in range of 1 to 8 microns. The other conventional process is improved upon by the improved method of manufacturing described below. The above process until this point is a well known art. After this necessary adjuvants/surfactants and fillers are added to obtain desired Sulphur content (on dry basis) is achieved in the slurry. While adding adjuvants in the tank, adjuvants should be stirred with stirrer known to the industry could be used. Typically silverston type mixer or another mixer must be on at all times. At this stage a very homogenous mixing /coating of particles takes place because of product being in a liquid suspension stage. Once thorough mixing/blending is achieved, the slurry is allowed to pass through a known art grinding/milling/particle size reduction. In the new art the homogenous mixing of the slurry arrived from the known art process is done in the stirrer tank. Grinding/milling is achieved with different types of mills like sand mills, beed mill (vertical/horizontal), Turbo mill, Dyno mill, Attritator, Peari mill from known art. By increasing the grinding time and monitoring the flow rate a bigger range of particle sizes are obtained. Basically all these wet grinding mills/equipments are working on a principle of grinding the product slurry with the aid of beads of size from 0.4 mm to 20 mm. Varying material like metallic stainless steel/Brass zirconium oxide bead/zirconium sand/glass beads/ceramic beads/Silica quartz/ zirconium silicate beads and or fused ceramic bead high density high alumina micro beads and/or similar or such combination of above can be used to achieve this required grinding. Such beads with diameter more than 0.3mm and hardness more than 3 Mohs and bulk volume more than 1.2 kg/lit, crushing strength more than 400 N and density more than 1.5 can be used as grinding media. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 62 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 A mill with diameter from 6 to 60" and length of 1 ft. to 8 ft. can be used. Here a sample from the output slurry is taken for particle size analysis then once convinced that majority of the particles are n the range that we want, the slurry is pumped/stored in another tank for feeding through a suitable piston pump/ Screw pump and allowed to spray/atomize through a high pressure nozzle (At a pressure of 10 to 50 bar) or through a rotary atomizer rotating at 5000 to 12000 R. P. M. While the slurry is being sprayed as mentioned above, the hot air at a temp between 100° C to 250°C is fed from the top of the chamber from a specially designed wing director. The hot air mixes with the atomized Sulphur spray from the nozzle or rotary disk and hence it is slowly dried and agglomerated. The agglomerated particles/Granule which are still wet (Moisture 8%) is met with from bottom integrated fluid bed drier from lower part of the spray drier main chamber from where the hot air of 70°C 110°C is blown through a fluidized bed so that the already dried onion skin granules move up to meet the top spray product and hence raspberry type granulation takes place. The granules are allowed to come out through rotary valve and are further dried in to a horizontal post fluid bod drier where dust is again separated and re fed into the drying chamber. The saturated hot air goes through two top outlet along with some fines through cyclone separator. The fines are collected and/or refed into the system on the bottom via rotary valve. The saturated air with very littles fines is passed through ventury and/or a packed column scrubber. The clean dust free air is allowed to go into the atmosphere." 34.5 Claim 1 in App 655 Claim 1 in App 655 reads thus: "An improved fungicidal/miticide formulation consisting of the following ingredients which are mixed thoroughly to obtain an improved formulation for making granules from micro particles obtained by wet grinding the aqueous suspension coating and subsequently drying in spray/fluidized bed spray and fluid bed Signature Not Verified spray granulator or a combination thereof to get water Dispersible Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 63 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Granules Which will have better bioefficary, more available surface area in turn reducing amount of product used. The product will have is claimed to have better flowability, be practically dust free & hence reduced inhalation toxicity to human being during manufacture & use by farmer. The product has smaller average particle size but larger range of particles, better sticking properties, better dispersion & leaves lesser residue in the soil & is hence user/friendly & Environmentally friendly. Unlike the conventional product which has a smaller particle size range this product has a larger range where the most particles are from 0.1 microns to 20 microns. The aqueous suspension consists of 80% by weight (dry basis) of the (Sulphur active ingredient;) between 0.5 to 5% of a wetting agent of the group of lignin derivatives; between 0.5 to 5% of the dispersing agent of the group of phenol/naphthalene; and/or polyoxyethelene derivatives and balance 6% to 35% of the filler along with required binding agents. Also anti foaming agent, if required between 0.02 to 1.4%. This slurry when dried as described above forms a free flowing formulation with less than 3% moisture giving a granule size above 200 microns (0.2mm) and reducing dust." Thus, the following features of Claim 1 in App 655 are immediately apparent: (i) It involves obtaining of granules from micro particles. (ii) The granules are obtained by wet grinding and subsequent drying. (iii) The drying is conducted "in spray/fluidized bed spray and fluid bed spray granulator or a combination thereof". (iv) Most particles are in the size range 0.1 to 20 µ. Signature Not Verified (v) The resultant granule size is above 0.2 mm. Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 64 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 34.6 When one compares the stipulations in the specifications in App 655 with those in the specifications of the suit patent, the position that emerges is that, in both specifications, (i) sulphur is combined with a wetting agent, a dispersing agent, a binding agent and fillers, (ii) alkyl naphthalese aromatic sulphonic acid is a preferred wetting agent in App 655, whereas alkyl naphthalene sulphonates are used in the suit patent, (iii) a group of phenol/naphthalene is used as the dispersing agent in App 655, and phenyl naphthalene sulphonates are used in the suit patent, (iv) lignin derivatives are used as the binding agent, (v) bentonite, talc and china clay are used as fillers, (vi) the sulphur, dispersing/wetting agent and fillers are added to water to make a slurry, (vii) the slurry is subjected to wet grinding to obtain particles of the desired µ size, and (viii) the slurry is then spray dried in a fluidized bed drier. As a result, in the suit patent, particle sizes of 1 to 12 µ and granule size of 0.1 to 2.5 mm are produced, and, in App 655, particles of 1 to 8 µ size with granules of size above 0.2 mm result. 34.7 Mr. Deepak Pranjivandas Shah is the inventor of the suit patent as well as of App 655. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 65 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 34.8 It is significant that, when one compares particle and granule sizes between the suit patent and App 655, the position that emerges is that (i) the particle size in the suit patent, of 2 to 12 µm, is within the particle size in App 655, which is 0.1 to 20 µm. (ii) the granule size, in the suit patent, of 0.1 to 2.5 mm, is within the granule size range envisaged in App 655, which is over 200 µm, which is equivalent to 0.2 mm. Both particle and granule size in the composition claimed in the suit patent are, therefore, entirely subsumed in the particle and granule size in App 655. 35. Obviousness of composition in suit patent vis-à-vis prior art from the point of view of person skilled in the art 35.1 At the outset, it needs to be noted that Section 2(1)(ja) of the Patents Act defines "inventive step" as meaning "a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art". There is no reference, therefore, to a person ordinarily skilled in the art or, as it is often abbreviated, the "POSA", but merely a "PSA". The word "ordinarily" appears, therefore, to be superfluous and unnecessary, and introduces a needless element of subjectivity into the definition which, otherwise, is clear and precise. The person is one who is skilled in the art. He is not, therefore, the gentleman on the Clapham omnibus, or even the mythical man "of average intelligence and Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 66 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 imperfect recollection" through whose eyes trade mark infringement is gauged. He is skilled in the art. 35.2 The "art", needless to say, refers to the subject matter of the invention claimed in the suit patent. In the context of the present dispute, therefore, the PSA is skilled in the use of agrochemical compositions. "Skill" must involve a sufficiently comprehensive knowledge of the art, and its various features and intricacies, even if it need not extrapolate to mastery. 35.3 The character and features of the PSA, and of how the test of obviousness is to be applied from the point of view of the PSA, stand delineated in precedents. 35.4 A Division Bench of this Court has, in F. Hoffman la Roche, observed thus: "145. Whether an invention involves 'novelty' and an 'inventive step' or is 'obvious' is a mixed question of law and fact, depending on the facts and circumstances of each case. Though no absolute or uniform formula can be laid down to ascertain obviousness however certain broad criteria have been laid down in the various decisions. 146. Obviousness has to be strictly and objectively judged. In the decision reported as Bishwanath Prasad v. Hindustan Metal Industries34 the Supreme Court laid down the principles to test 'inventive step' as under:- 25. Another test of whether a document is a publication which would negative existence of novelty or an "inventive step" is suggested, as under: "Had the document been placed in the hands of a competent draftsman (or engineer as distinguished Signature Not Verified 34 (1979) 2 SCC 511 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 67 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 from a mere artisan), endowed with the common general knowledge at the 'priority date', who was faced with the problem solved by the patentee but without knowledge of the patented invention, would he have said, 'this gives me what I want?' (Encyclopaedia Britannica; ibid). To put it in another form: 'Was it for practical purposes obvious to a skilled worker, in the field concerned, in the state of knowledge existing at the date of the patent to be found in the literature then available to him, that he would or should make the invention the subject of the claim concerned?' [Halsbury, 3rd Edn., Vol. 29, p. 42 referred to by Vimadalal, J. of Bombay High Court in Farbwerke Hoechst & B. Corporation v. Unichem Laboratories35" 147. To test obviousness the first test required to be applied is to see who is an ordinary person skilled in art (POSA) and what are its characteristics. The features of a person skilled in the art are that of a person who practices in the field of endeavour, belongs to the same industry as the invention, possesses average knowledge and ability and is aware of what was common general knowledge at the relevant date. 148. The Supreme Court of United States in the decision reported as William T. Graham et al. v. John Deere Company of Kansas City et al.36 analyzed the factual determination of the level of ordinary skill in the art which analysis was followed with approval in Environmental Designs Ltd. v. Union Oil Company of California37, Orthopedic Equipment Co. Inc. v. The United States38, Newell Companies, Inc. v. Kenney Manufacturing Company39 and Daiichi Sankyo Co., Ltd. v. Apotax, Inc40. The decisions laid down the following principle factors, though not exhaustive, as under:- "In determining the level of ordinary skill in the art, you should first determine whether there was a number of people who regularly worked to solve the type of problem that the invention solved, and, if so, determine the level of ordinary skill of such people at the time the invention was made. You must consider the level of skill as to the time 35 AIR 1969 Bom 255 36 383 U.S. 1 (1966) 37 218 U.S. P.Q. 865 38 702 F.2d 1005 39 864 F.2d 757 Signature Not Verified 40 501 F.3d 1254 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 68 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 the invention was made. Among the factors that may be considered in your determination are: (1) The various ways that others sought to solve the problems existing; (2) The types of problems encountered; (3) The rapidity with which new inventions are made in this art; (4) The sophistication of the technology involved; and (5) The educational background of those actively working in the field." 149. The triple test of obviousness has been laid down by the U.S. Supreme Court in KSR International Co41 i.e. 'teaching, suggestion, or motivation'. Noting that the analysis was objective, it was held:- "Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." Id., at 17-18." 150. In Windsurfing International Inc42 the Court of Appeals noted the four steps to answer the question of obviousness which were followed in Pozzoli SPA43 as under:- "(i) identifying the inventive concept embodied in the patent; (ii) imputing to a normally skilled but unimaginative addressee what was common general knowledge in the art at the priority date; 41 KSR International Co v Teleflex Inc, 550 US 398 (2007) 42 Windsurfing International Inc. v. Tabur Marine (Great Britain) Ltd, (1985) RPC 59 Signature Not Verified 43 Pozzoli SPA v. BDMO SA,. (2007) EWCA Ciuv 588 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 69 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (iii) identifying the differences if any between the matter cited and the alleged invention; and (iv) deciding whether those differences, viewed without any knowledge of the alleged invention, constituted steps which would have been obvious to the skilled man or whether they required any degree of invention." 151. In Eisai Co., Ltd.44 the Board of Appeals of European Patent Office applying the problem solution approach which consists essentially in (a) identifying the closest prior art, (b) assessing the technical results (or effects) achieved by the claimed invention when compared with the closest state of the art established, (c) defining the technical problem to be solved as the object of the invention to achieve these results, and (d) examining whether or not a skilled person starting from the closest prior art "would" arrive at something falling within claim by following the suggestion made in the prior art held that when deciding upon inventive step in relation to pharmacologically active compounds it is not essential whether a particular substructure of a compound could be replaced by another known isosteric one, but whether information was available on the impact of such a replacement on the pharmacological activity of the specific group of compounds concerned. 152. Expressing a note of caution, the Bombay High Court in F.H. & B. Corp.45 guarded the Courts of law against the common human failing of being wise after the event in regarding something that has been discovered by research as obvious. In Grain Processing46 the Court noted that care must be taken to avoid hindsight reconstruction by using the patent in suit as a guide through the maze of prior art references in the right way so as to achieve the result of the claims in suit. In Pfizer Inc. v. Teva Pharmaceuticals47 it was held that a patent challenger must however demonstrate the selection of a lead compound based on its promising useful properties, not a hindsight driven search for structurally similar compounds. Similar caution was advanced in Yamanouchi Pharmaceutical Co. Ltd.48 and Otsuka Pharmaceutical Co. Ltd. 153. From the decisions noted above to determine obviousness/lack of inventive steps the following inquires are required to be conducted: 44 Case No. T164/83 45 F.H. & B Corp. v. Unicem Laboratories, AIR 1969 Bom 255 46 Grain Processing v. American Maize, 840 F. 2d 902 47 457 F.3. 1284 (United States) Signature Not Verified 48 CAFC Yamanouhi Pharmaceutical Co. Ltd v Danbury Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 70 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Step No. 1 To identify an ordinary person skilled in the art, Step No. 2 To identify the inventive concept embodied in the patent, Step No. 3 To impute to a normal skilled but unimaginative ordinary person skilled in the art what was common general knowledge in the art at the priority date. Step No. 4 To identify the differences, if any, between the matter cited and the alleged invention and ascertain whether the differences are ordinary application of law or involve various different steps requiring multiple, theoretical and practical applications, Step No. 5 To decide whether those differences, viewed in the knowledge of alleged invention, constituted steps which would have been obvious to the ordinary person skilled in the art and rule out a hideside approach. 154. On the various tests as noted above, there is no dispute between Cipla and Roche however the dispute arises whether the teaching of prior art document should be considered as a whole, whether there should be no teachings away and whether evidence to try merely on structural similarity can form the basis for selection of lead compound in a prior art. 155. In Otsuka Pharmaceutical Co. Ltd. it was held - "A patent is invalid if an alleged infringer proves, by clear and convincing evidence, that the differences between the claimed subject matter and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the pertinent art." 156. In re: Dillon49 relied upon by learned counsel for Cipla, though the majority held that a prima facie case for obviousness of chemical composition is established if there is structural similarity between claimed and prior art subject matter, proved by combining references or otherwise, and if prior art gives reason or motivation to make claimed composition however, the minority judgment noting various authorities held that Courts have expressed dissatisfaction on the earlier rule that 'structural obviousness' alone was deemed to create a presumption of unpatentability. The minority held that the weight of the authorities would show that Signature Not Verified 49 16 USPQ.2d 1897 Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 71 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 structural similarity of the prior art compound cannot be the criteria alone and the prior art must prima facie suggest both similar structure and property before the burden shifts to the applicant to prove the unexpected differences. Even in 444.2d 581 re: John R. Slemniski the Court held that similarity of structure alone was insufficient for prima facie unpatentability. Thus to show obviousness besides structural similarity there should be a reason or motivation shown in the prior art to make the particular structural change in order to achieve the properties that the applicant was seeking. 157. In Pfizer Inc. v. Teva Pharmaceuticals the Court of Appeals with regard to obviousness inter alia held as under:- The determination of obviousness is a legal conclusion based on underlying facts. Allergan, Inc. v. Sandoz Inc.50. After a bench trial, we review the district court's factual findings for clear error and its conclusions of law de novo. Honeywell Int'l, Inc. v. United States51. A patent claim is invalid for obviousness if "the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains." 35 U.S.C. § 103. The "underlying factual considerations in an obviousness analysis include the scope and content of the prior art, the differences between the prior art and the claimed invention, the level of ordinary skill in the art, and any relevant secondary considerations[,]" which include "commercial success, long-felt but unsolved needs, failure of others, and unexpected results." Allergan, 726 F.3d at 1290-91 (citations omitted). Patent invalidity must be established by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P'ship52." 35.5 While applying the above principles, however, the Court must also be conscious of the fact that it is dealing with an application under Order XXXIX of the CPC, and not finally adjudicating on the infringement plea. 50 726 F.3d 1286, 1290-91 (Fed. Cir. 2013) 51 609 F.3d 1292, 1297 (Fed. Cir. 2010) Signature Not Verified 52 131 S.Ct. 2238, 2242 (2011) Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 72 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 35.6 Additionally, the Court must be conscious, while dealing with an Order XXXIX plea in a patent infringement suit, where the defendant raises a Section 107 defence, that the defendant is only required to set up a credible challenge to the validity of the suit patent on one or more of the grounds envisaged by Section 64(1), to avoid an interim injunction. 35.7 There is some debate on whether, while examining whether the suit patent is obvious from prior art, mosaicing of the features in the prior art is permissible. There are decisions which hold that it is, and there are decisions which hold otherwise. In my opinion, so far as this country is concerned, the decision which has the greatest and most authoritative precedential value is necessarily Bishwanath Prasad Radhey Shyam, rendered, as it is, by the Supreme Court. Paras 22 and 25 of the report in Bishwanath Prasad Radhey Shyam illustrate the legal position of the PSA, vis-à-vis the prior art and the suit patent, to analyze obviousness, thus: "22. This aspect of the law relating to patentable inventions, as prevailing in Britain, has been neatly summed up in Encyclopaedia Britannica, Vol. 17, p. 453. Since in India, also, the law on the subject is substantially the same, it will be profitable to extract the same hereunder: "A patent can be granted only for 'manner of new manufacture' and although an invention may be 'new' and relate to a 'manner of manufacture' it is not necessarily a 'manner of new manufacture' -- it may be only a normal development of an existing manufacture. It is a necessary qualification of a craftsman that he should have the knowledge and ability to vary his methods to meet the task before him -- a tailor must cut his cloth to suit the fashion of the day -- and any monopoly that would interfere with Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 73 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 the craftsman's use of his skill and knowledge would be intolerable. A patentable invention, therefore, must involve something which is outside the probable capacity of a craftsman -- which is expressed by saying it must have 'subject-matter' or involve an 'inventive step'. 'Novelty' and 'subject- matter' are obviously closely allied ... Although these issues must be pleaded separately, both are invariably raised by a defendant, and in fact, 'subject-matter' is the crucial test, for which there may well be novelty not involving an 'inventive step', it is hard to conceive how there can be an 'inventive step' without novelty." ***** 25. Another test of whether a document is a publication which would negative existence of novelty or an "inventive step" is suggested, as under: "Had the document been placed in the hands of a competent draftsman (or engineer as distinguished from a mere artisan), endowed with the common general knowledge at the 'priority date', who was faced with the problem solved by the patentee but without knowledge of the patented invention, would he have said, 'this gives me what I want?' (Encyclopaedia Britannica; ibid). To put it in another form: 'Was it for practical purposes obvious to a skilled worker, in the field concerned, in the state of knowledge existing at the date of the patent to be found in the literature then available to him, that he would or should make the invention the subject of the claim concerned?' [Halsbury, 3rd Edn., Vol. 29, p. 42 referred to by Vimadalal, J. of Bombay High Court in Farbwerke Hoechst & B. Corporation v. Unichem Laboratories." 35.8 From these two brief passages, several important principles emerge, apropos the PSA and the aspect of obviousness vis-à-vis prior art. They may be thus noted: Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 74 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (i) The PSA is a "competent craftsman". He is an "engineer", as distinguished from a mere artisan. He is a "skilled worker in the field concerned". (ii) He is endowed with "common general knowledge". (iii) This knowledge would encompass all knowledge present in all "literature available to him". Thus, all existing literature relating to the prior art has to be taken into consideration while deciding the issue of obviousness, and, if the existing literature - as opposed to the mere closest prior art - teaches, or shows the way, for the PSA to arrive at the invention forming subject matter of the suit patent, the suit patent would be obvious. Inasmuch as all "literature available" to the PSA is to be taken into account, I see no justification for the proposition that there can be no mosaicing of prior art. (iv) In this background, it has to be gauged whether such a PSA would be able to arrive at the subject matter of the suit patent from the teaching in the prior art. (v) Any monopoly which would interfere, in such circumstances, with the craftsman's use of his skill and knowledge, would be intolerable. Applying these principles to the facts Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 75 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 36. When one applies these principles to the facts at hand, it is apparent, prima facie, that a PSA would have, in the common general knowledge emanating from the literature available on the subject, enough teaching to guide him to synthesize the formulation claimed in the suit patent. The objectives of the composition claimed in the suit patent, as, according to the complete specifications, give it an edge over prior conventional sulphur-based agrochemical fertilizers, and the manner in which such objectives are to be achieved, are also prima facie obvious from the literature constituting "prior art". (i) In the article Sulfur in organic farming by Hans Marten Paulsen, it is stated: "Beyond the natural role of sulfur as plant nutrient, in organic farming it is an important fungicide and acaricide. S as plant nutrient has to be kept at a sufficient level because it can help in saving nitrogen and in reducing nitrogen leaching. Sulphur as plant nutrient S is an essential plant nutrient influencing internal and external quality, plant growth, health and nutrient efficiency of agricultural crops. S from sulfate (SO4) sources is readily plant available whereas S0 has to be oxidized in soil before plant uptake." Thus, the above article teaches that sulphur can act as a fungicide or a plant nutrient, viz., a fertilizer, and that it was available to plants in the sulphate form. The Extoxnet article on "Sulfur", published in September 1995, teaches that sulphur is used as a fungicide and is "also used as a Signature Not Verified fertilizer or soil amendment for reclaiming alkaline soils". Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 76 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Under the head "Breakdown of Chemical in Soil and Groundwater", the article further states that "elemental sulfur is slowly converted to sulfate in soil by the action of autotrophic bacteria". (ii) The "Technical Bulletin: Oxidation of Elemental Sulfur in Soils" by the Fertiliser Technology Research Centre of the University of Adelaide taught the following: "Sulfate-based fertilizers are immediately available to crops but are prone to leaching below the root zone in high rainfall environments. They are low in sulfur (S) content compared to elemental S fertilizers so transport costs are comparatively higher Fertilizers containing elemental S can provide higher S content, resulting in less dilution of other nutrients compared to sulfate- containing fertilizers. They also provide S in a form that is not leached out of the root zone. However, to be plant available, the elemental S must first be oxidized to sulfate in the soil. In soils, oxidation of elemental S is a biologically-mediated process and a wide range of soil organisms are able to perform this oxidation, not just autotrophic soil microorganisms like the Thiobacillus species. Hence all soils have the Inherent biological capability, to oxidize elemental S. The smaller the particle size of elemental S, the faster its oxidation when dispersed in soil. Oxidation of co-granulated elemental S is affected by the total elemental S content of the granule (reducing as S content increases) and granule size (reducing as granule diameter increases), as both these affect the surface area of elemental S available for oxidation. Particle size of the co-granulated elemental S only significantly affects oxidation when fertilizer granules have low contents of elemental S. Sulfur (S) is one of the 17 elements essential for plant growth and the fourth most important after nitrogen (N), potassium (K), and phosphorus (P) In terms of amounts required by crops. Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 77 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 Elemental S is the most concentrated form of S, and hence will have lower transport costs and less dilution effects on other nutrients in fertilizers compared to sulfate-based fertilizers. Elemental S is riot taken up by crops in the applied form, and must be converted in the soil to sulfate-S before uptake by plants or microorganisms. OXIDATION OF ELEMENTAL S IN SOILS Oxidation of elemental S (or thiosulfates) in soil is a microbial process requiring the presence of both water and oxygen (Figure 1). There is a very wide variety of microorganisms in soil that are capable of oxidizing elemental S, both bacteria and fungi (Lawrence and Germida 1988; Tourna et al. 2014), hence oxidation is not solely dependent on the presence of specific S- oxidizing organisms e.g. Thiobacillus species. FERTILIZER ATTRIBUTES AFFECT OXIDATION OF ELEMENTAL S IN SOILS Oxidation of elemental S fertilizer is also affected by the characteristics of the fertilizer. When elemental S is dispersed through soil, the oxidation of elemental S is faster as the particle size of the elemental S decreases (Figure 3). This occurs because oxidation is a surface-based process and surface area increases dramatically as particle size decreases. In co-granulated elemental S fertilizers, (i.e. where elemental S particles are co-granulated with macronutrients (N, P or K) or with binders/dispersants such as bentonite), the oxidation is much reduced compared to the elemental S particles of the same size dispersed through soil (Friesen 1996). MODELLING OXIDATION OF ELEMENTAL S IN CO- Signature Not Verified GRANULATED FERTILIZERS Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 78 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 As oxidation of elemental S is a surface-based process, the rate of oxidation is proportional to the surface area of the particles if they are dispersed through soil. The specific surface area (SA, the surface area per unit mass) of a spherical particle equals: SA = Α/(ρ.V) = (πd2)/(ρ.π d3/6) = 6/(p.d) [1] where A, V and dare the area, volume and diameter of the spherical particle, respectively, and p is the particle density. Hence, the oxidation rate of elemental S particles dispersed in soil is predicted to be inversely proportional to the particle diameter. Hence the effective surface area (SAeff) per mass of elemental S in this case is: SAeff = 6/(ƒESxpgranxdgran) [2] where dgran is the diameter of the fertilizer granule. pgran the density of the granule, and ƒES the mass fraction of elemental S in the granule (Degryse et al. 2016b). If the area covered by the individual elemental S particles is less than the original granule surface area, the particles act as dispersed particles (Figure 5b). Hence, the surface area available for oxidation for a given amount of S depends on the concentration of elemental S In the granule, the original granule size and the particle size of the elemental S within the granule. The last factor is only important at low concentrations of elemental S." (iii) In Elemental sulfur fertilizers and their use on crops and pastures by C. C. Boswell and D. K. Friesen, the following teaching is to be found: "This paper reviews the use of elemental sulfur (S°) as a fertiliser and its efficacy in different pastoral and cropping situations. The effect of S° particle size on rate of oxidation is critical to the effectiveness of S° fertilisers. Emphasis is therefore centred on the issue of how particle size of S° affects the rate of oxidation in different environments and cropping systems, and the size of S° in different S° fertiliser products. 1. Introduction Elemental sulfur (S0) is an ideal slow release sulfur (S) fertilizer. It is 100% nutrient and this restricts the amount of fertilizer required. It is insoluble in water and therefore stable in damp or humid conditions. Although S0 is unavailable for plant uptake, it is oxidized to the plant- available sulfate-S form by soil micro- Signature Not Verified organisms. The key to its success as a fertilizer is the rate of Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 79 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 oxidation from S0 to sulfate. Factors which affect to the use of S0 fertilizer. However this review shows that, given environmental conditions under which S oxidation can occur (i.e. S-oxi- dizing organisms are present and environmental conditions allow oxidation), then the key factor affecting rate of oxidation is the size of the particles of S0 applied. Much of this review is Elemental-S fertilizers "Elemental sulfur has to be oxidized to sulfate before it can be taken up by plants. The rate of oxidation is depedent on the surface area of the particles of So available to be colonized by oxidizing micro-organisms in the soil. For a given mass the surface area is inversely proportional to particle diameter. For rapid oxidation fine So particle size is required (e.g. with 1-2 µ particles in slurry, oxidation is practically instantaneous). However, very fine particles of So are difficult to handle and to apply as a fertilizer, are irritating to the eyes and lungs, and are suspectible to loss by wind or to transfer on the surface of applied irrigation water. But, most seriously, fine particles of So represent a fire and explosive hazard. Fine dry So per se is thus impractical as a commercial fertilizer." (iv) GB'005, titled "Process for producing powder-like sulphur preparations" declares the invention as relating to "processing of sulphur and, more particularly, to processes for producing powder-like sulphur preparations". It discloses, as its "most advantageous area of application ... the production of a granulated wettable power of sulphur useful in plant protection ..." The specifications further state: "Such constraints were a feature of S0 based fertilizers for at least 3 decades. In Australia and New Zealand S0 mixtures consisted initially of physical mixtures of dry single superphosphate and dry screened "agricultural" S. The distribution of particle size of S0 was thus always that of screened "agricultural" S0 (Table 5). However the importance of fine S was generally known [16, 47, 69, 85, 87, 147]; it remained to find a method of applying S in fertilizers which had high S content, low fire hazard, ready plant availability, could be easily applied by aircraft, could readily be mixed with other fertilizers, and had low cost. The range of S0 fertilizers Signature Not Verified discussed later will show that several alternative fertilizers have Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 80 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 met many of these requirements. Much of the recent research has centred on defining the size of S0 particles required in agronomically effective fertilizers for a variety of environments. A process for the production of powder-like sulphur preparations according to the present invention comprises preparation of a suspension of sulphur, dehydration thereof to a paste-like state, followed by granulation of the resulting paste. Example 1 A suspension of sulphur with the stability of 90% produced by wet grinding of sulphur is dehydrated in a roll drier to the moisture con tent of 13%. The resulting paste is subjected to granulation by extrusion through a die in the form of threads with the diameter of 3 mm, then dried by air at the temperature of 80°C on a band drier. The stability of the thus-obtained sulphur preparation has remained unchanged and equal to 90%. The resulting granulated product is not ) caked.in storage and does not lose its quality for a long time. A wettable powder of sulphur produced by the prior art process from a suspension of the same quality (90%) after drying in a spray 5 drier has stability of 75%. Furthermore, its quality is considerably reduced during a long time storage due to caking thereof." (v) US'442, titled "Water Dispersible Pesticide Aggregates" teaches the technique of drying on a fluidized bed after spraying through an atomizer in order to obtain independent granules of small sizes. (vi) The FCO (Third Amendment) Order, 2006, which amended the FCO 1985 inserted, in the FCO 1985, Clause 20B, which read thus: "20B. Specifications in respect of customized fertilizers. Notwithstanding anything contained in this Order, the Central Government may by order published in the Official Gazette, notify specification, valid for a period not exceeding three years in respect of customized fertiliser to be manufactured by any manufacturing unit". Signature Not Verified 5. In the said Order, in the Schedule I- Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 81 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (i) in Part-A, under the heading "Specifications of Fertilizers", (a) after the sub-heading 1(c), the following sub- heading shall be inserted namely:- "1(cc). Straight Sulphur Fertilizers. (1) Sulphur 90% (powder) (i) Moisture per cent by weight, maximum 1.00 (ii) Total Sulphur (as S) per cent by weight minimum 90.00 (2) Sulphur (granular) (i) Moisture per cent by weight, maximum 0.5 (ii) Total Sulphur (as S) per cent by weight minimum 90.00 (iii) Particle size not less than 90 per cent of the material shall pass through 4.0 mm IS sieve and be retained on 1 mm IS sieve and not more than 5% shall be below 1 mm IS sieve." 37. Thus, the existing prior art, on the priority date of the suit patent, including App 655, taught (i) that sulphur could act both as a fungicide as well as a fertilizer, (ii) that sulphur could only be absorbed by plants in the form of sulphate, and not as such (iii) that conversion of sulphur to sulphate was by bacteria present in the soil, with no human intervention, (iv) that the rapidity of absorption of the sulphate by the plants was critical to the effectiveness of the fertilizer, (v) that greater oxidation of sulphur to sulphate would take place if the particle and granule sizes were smaller, Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 82 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 (vi) that sulphur of a strength of 90% w/w was usable as a fertilizer, (vii) sulphur formulation with upto 80% sulphur with granule size above 200 µ and particle size 0.1 to 20 µ, (viii) preparation of the formulation by wet grinding, which eliminated all risks by the dry grinding process including chances of fire and explosion, (ix) subsequent drying using a fluidized bed method, and (x) manufacture of powder or granules of 90% sulphur for use as a fertilizer (in the FCO 2006 Amendment Order). 38. These prior arts constitute literature which is part of the common general knowledge, available to the PSA on the priority date of the suit patent. Regarding the PSA as a "skilled craftsman" (applying the expression used in Bishwanath Prasad Radhey Shyam), it cannot be said that, via these prior arts, the defendants have not been able to make out a credible challenge to the validity of the suit patent on the ground of obviousness from the teachings in prior art. 39. If safeguarding of patent rights is in public interest, equally eminently in public interest is the need to ensure that inventiveness is not stifled by allowing patents which are obvious from the teachings contained in prior art to monopolize the field. If this is allowed, it would suffocate innovation, and be counterproductive in the long run. Conclusion Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 83 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50 40. As the defendants have succeeded in setting up a credible challenge to the validity of the suit patent on the ground of obviousness vis-à-vis prior art, the plaintiff cannot be granted the interlocutory injunction that it seeks. 41. All applications for interim injunctions, in these suits, are, therefore, dismissed. C. HARI SHANKAR, J. MARCH 18, 2024 Signature Not Verified Digitally Signed CS(COMM) 1225/2018 & other connected matters Page 84 of 84 By:AJIT KUMAR Signing Date:24.03.2024 10:50