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Lovato Gas G.P.A. Strada Communale Castle v/s S.C. Somasundaram M/s. Raajan Automobiles Private Limited & Another

    ORA/12 of 2009/PT/CH

    Decided On, 10 October 2011

    At, Intellectual Property Appellate Board

    By, THE HONOURABLE SMT. JUSTICE PRABHA SRIDEVAN CHAIRMAN & THE HONOURABLE MR. D.P.S. PARMAR TECHNICAL MEMBER (PATENTS)

    For the Applicant: A.A. Mohan, Advocate. For the Respondents: P.V. Rajeswari, Advocate.



Judgment Text

Order No.172/2011

PRABHA SRIDEVAN,CHAIRMAN

1. The Petitioner seeks revocation of the patent 198370 (366/MAS/2000) dated 11.5.2000 granted in favour of the respondent.

2. The title of the patent is 'A system for conversion of liquefied petroleum gas/compressed natural gas for use as automobile fuel'.

3. The facts in brief are that the applicant claims to be a pioneer in the filed of manufacturing Auto Gas Conversion Kits. The respondent has been selling kits almost identical to the applicant. The applicant filed a suit before the Hon'ble High Court of Madras for infringement of trademark, patent and design against the respondent. Interim injunction was granted on 11.4.2001 and made absolute on 18.3.2002. The respondent also submitted to a decree in the suit. The respondent is a habitual offender. The patent claimed is nothing beyond the prior art. The basic use of LPG/CNG connection as an alternate to petrol is known. According to the applicant the invention is not new, there is no inventive step, it is obvious, there is no sufficient disclosure and it is anticipated. The Approval No. E4-67R-009 2006 issued by Government of Netherlands dated 20.1.1993 discusses the use of LPG (CNG) as alternate fuel and the components for conversion. The impugned patent and this European prior art are very similar. The U.S.Patent 4369751 dated 25.1.1983 anticipate the invention. Every feature of the invention is covered by the prior art. The respondent suppressed the Hon'ble High Court order and on this ground also it is liable to be revoked.

4. From the specification it is seen that 'the primary object of invention to design a system for using LPG/ CNG as fuel for Automobile. This system is rugged, simple in construction, efficient and economical.'

5.Summary of the invention reads as follows:-

'The invention defines a system for conversion of Liquefied petroleum gas / compressed natural gas for use as automobile fuel comprising a) Vaporizer or pressure reducer being an equipment which vaporizes and reduces the high pressure LPG/CNG to atmospheric pressure, b) A Electronic relay being an equipment sends the message about the running made of the vehicle (petrol or gas) to the Electronic control module, c) A Electronic switch being an equipment positioned between the tank and pressure reducer is in built with two operations in a single switch (petrol and gas mode) and also posses level indication for Gas in the tank, d) A Tank multivalve being an equipment is fitted over the tank, posses safety valve, service valve, fusible plug, excess flow valve for safety ensured drive, e) A Refueling point being an equipment used for refueling, whenever the LPG comes to reserve, f) a Gas solenoid being an equipment encompassing a filter, allows or cuts the flow LPG to vaporizer or pressure reducer, g) A Mixer being an equipment which increases the mileage and engine performance by allowing a proportionate ratio or air-fuel mixture to the carburetor/injection venturi.

6. Claim

1. A system for conversion of Liquefied petroleum gas / compressed natural gas for use as automobile fuel comprising a) Vaporizer or pressure reducer which vaporizes and reduces the high pressure LPG/CNG to atmospheric pressure, b) A Electronic relay sends the message about the running mode of the vehicle (petrol or gas) to the Electronic control module, c) A Electronic switch positioned between the tank and pressure reducer is in built with two operations in a single switch (petrol and gas mode) and also posses level indication for Gas in the tank, d) A Tank multivalve is fitted over the tank, posses safety valve, service valve, fusible plug, excess flow valve for safety ensured drive, e) A Refueling point used for refueling, whenever the LPG comes to reserve, f) A Gas solenoid encompassing a filter, allows or cuts the flow of LPG to vaporizer or pressure reducer, g) A Mixer which increases the mileage and engine performance by allowing a proportionate ratio of air-fuel mixture to the carburetor/injection venturi.

2. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 1 wherein pressure reducer is two chambered for LPG mode and three chambered for CNG mode.

3. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claims 1 & 2 wherein pressure reducer is only Vacuum creation type for LPG mode.

4. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 1 wherein pressure reducer is Electronic type.

5. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 1 wherein the said vaporizer has two stages of assembly viz. 1st stage assembly and 2nd stage assembly.

6. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 5 wherein the pressure reducer 1st stage assembly provided with an inlet hole through which high pressure gas enters and gets reduced to atmospheric pressure.

7. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 1 wherein the said vaporizer has a provision in the outer periphery for circulation of hot water to facilitate LPG in liquid form being converted into gas form.

8. A system for conversion of LPG/CNG for use as automobile fuel as claimed in proceeding claims wherein the said vaporizer has the second stage with spring inside a diaphragm above which a washer is placed and screwed.

9. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 1 wherein a multivalve with a level indicator, which indicates level of gas inside the cylinder being connected to solenoid cut off valve.

10. A system for conversion of LPG/CNG for use as automobile fuel as claimed in claim 1 wherein the said vaporizer, the copper pipe tubes are being used for interconnection between the parts of the vaporizer.

The European Patent No. EP 0976920 marked as Exhibit 7 has been assigned in favour of the appellant. The claim 1 of this patent read as 'A group of regulation of the feeding a gaseous fuel of the type GPL (gas from liquefied petroleum) and other similar fuels, said group being mounted on an installation for injecting the fuel in an engine operating with internal combustion (5) said group comprising substantially a vaporizer/reducer of pressure (2) said vaporizer/reducer of pressure being connected to a regulator of pressure (3) from which the gas enters in the cylinders of the engine by means of tuyeres of injection (4) a safety electrovalve (7) and an electronic switchboard (10), said group of regulation being characterized by the fact that the action of regulation of the gaseous flow is obtained by the action of two small engines operating step-by-step (8.1) and (8.2), said two small engines being provided with obturators (9.1) and (9.2), said obturators regulating the flow of the fuel on conduit (6), said conduit connecting the vaporizer/reducer (2) to the regulator of pressure (3), said two small engines (8.1) operating in parallel and parallel to conduit (6), one of said small engines (8.1) operating step-by-step to regulate the flow of the gas when the engine (5) functions 'aluminum' and providing the control of the combustion using the signals of the 'lambda', the second small engines (8.2) operating step-by-step to regulate the flow of the gas when the engine functions in a normal operation, said second small engine being coupled with the functioning of said first small engine (8.1).'

7. If we look at Exhibit 7 we find that there is vaporizer/reducer of pressure, there is an electronic switch Board. If we look at U.S. Patent 4369751 (Exhibit 6), we find that there is 'The mixer air form of an adapter to fit on the top of an existing carburetor' it contains a vaporizer and regulator'. It has a safety cut-off valve. Exhibit 6 has an inlet port for receiving gaseous fuel therefrom, which is the inlet hole (class 6) it has a 'vacuum operated diaphragm. Exhibit 6 prior art contains the solenoid which when activated 'causes the free flow of gas'. The engine thus is provided with sufficient fuel to start when cold. Once the engine is started and idling the solenoid is deactivated and fuel for idling is supplied through regulator'

8. The Learned Counsel for the applicant submitted that the European patent is in favour of the applicant. He submitted that claim 2 of the invention is a dependent claim and there is no mention of three chambers in the complete specification. He submitted that claim 3 and 4 are contradictory and that claim 7 is not explained in complete specification and as regards claim 10, he submitted that tube for inter-connection is no invention, and that the claim is silent to emission control. He submitted that barring a bare denial, none of the grounds raised for revocation have been met in the counter statement. He submitted that the invention is available in the market, and that a mere assembly of known integer cannot be considered an invention. He submitted that the special features mentioned in the counter statement is not found in the complete specification, and that the patentability has to be tested on the basis of the complete specification. Whatever is explained in counter statement by the respondent is not disclosed in the patent specification.

9. The Learned Counsel relied on the following judgments:-

uPTC (Suppl) (2) 799 (Cal) in Unique Transmission Co. India Ltd. Vs. ESBI Transmission Pvt. Limited.

v1979 2 SCC 511 in Civil Appeal Nos. 1630-1631 of 1969 in M/s. Bishwanath Prasad Radhey Shyam Vs, Hindustan Metal Industries.

'2007 (34) PTC 419 (Del.) in IA Nos. 10848/2006, 13971/2006 & 11160/2006 in CS(OS)No. 1847/2006 in Bilcare Ltd. Vs. Amartara Pvt. Limited.

1986 (6) PTC 195 (SC) in Civil Appeal No. 1490 of 1984 in Monsant Company Vs. Coramandal Indag Products (P) Limited.'

10. The Learned Counsel submitted that the patent should be revoked.

11. The Learned Counsel for the respondent submitted that the manner in which the invention is worked is explained in the counter statement. The primary object of the invention shows that it is economical. The various features in the invention demonstrates the patentability, a) jet and inlet holes; b) aluminum tools; c) the nipple; d) size of the hole; and e) spares. The Learned Counsel explained that

'Whenever the vehicle is cranked the inlet manifold creates the suction. Hence the suction created by inlet manifold is transmitted to vacuum diaphragm enabling it to move downwards along with dragging of the 2nd stage rocket for a momentary and releases the same. The dragging movement is executed by a magnet placed on the Vacuum diaphragm. At this stage the vehicle maintains its idle stage.'

'The 1st stage has jet and hold in which the pressure which enters the 1st stage is 5.5 kg/cm2 . The pressure leaving the 2nd stage is atmospheric pressure. The 2nd stage consists of diaphragm and magnet and spring. The connecting tubes are such as copper pipes, vacuum hoses, radiator hose.'

'The 1st stage has jet and hold in which the pressure which enters the 1st stage is 5.5 kg/cm2 and get reduced to 1 kg/cm2. The pressure leaving the 2nd stage is atmospheric pressure.'

12. The Learned Counsel for respondent submitted that the revocation petition should be dismissed.

13. We have considered the submissions. The appellant has given a table at para 15.8 giving the similarity between the patent and prior art (No. E4-67R-009 2006). Both contain vaporizer, pressure reducer, stage inlet has a hole through which high pressure gas enter, a multi valve control gas solenoid etc. In fact all the features of the impugned invention are found in the prior art. The U.S.Patent No. 4369751 relates to use of LPG/CNG as an alternate to automobile fuel. This prior art also discloses the impugned inventions further. A table is given to bring out the similarities. This prior art also contains an idle valve, a vaporizer, two chambers etc. The impugned invention has an electronic switch to switch from petrol to LPG/CNG and vice versa. The prior art also has a control for changeover from gas to gasoline and back. In fact the patent is for the system and if we look at the complete specification, we find the description is not sufficient. The attempt of the respondent to read counter statement explanations into the specification will not succeed to cure this inherent defect of insufficiency.

a)In PTC (Suppl) (2) 799 (Cal) in Unique Transmission Co. India Ltd. Vs. ESBI Transmission Pvt. Limited, it was held that 'The alleged improvement on something known before is neither particularized not made specific in the complete specifications of the claims and it cannot be said that new or useful invention appears from the complete specifications or the claims. There are mere vague and uncertain allegations of improvement when the particulars as to the mechanical or chemical or other constructional particulars cannot disclose a new or useful invention specially when it is admitted that a large number of different types of flexible couplings have since long been manufactured and marketed in India by different manufacturers.'

b)In 1979 2 SCC 511 in Civil Appeal Nos. 1630-1631 of 1969 in M/s. Bishwanath Prasad Radhey Shyam Vs, Hindustan Metal Industries, it was held that 'The object of the Patent Law is to encourage scientific research, new technology and industrial progress and its fundamental principle is that a patent is granted only for an invention which must be new and useful, that is, have novelty and utility. In order to be patentable an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement; and must independently satisfy the test of invention or be an ‘inventive step’. Mere collection of more than one integers or things, not involving the exercise or any inventive faculty, does not qualify for the grant of a patent. In other words in order to be patentable, the new subject-matter must involve ‘invention’ over what is old. It must produce a new result, or a new article or a better or cheaper article than before. It must be a ‘manner or new manufacture’ and must involve something which is outside the probable capacity of a craftsman. If the ‘manner of manufacture’ patented was publicly known, used and practiced in the country before or at the date of the patent, then it will negative novelty or ‘subject matter’. Prior public knowledge can be by word or mouth or by publication through books or other media.'

c)In 2007 (34) PTC 419 (Del.) in IA Nos. 10848/2006, 13971/2006 & 11160/2006 in CS(OS)No. 1847/2006 in Bilcare Ltd. Vs. Amartara Pvt. Ltd., it was held that 'A perusal of the patent claim of the plaintiff itself shows that the plaintiff itself has acknowledged that metallization of a polymeric film is known. It would not be a defence of the defendant to show that the various integers were already known separately and thus the combination thereof cannot be patented. This would amount to mosaicing which is recognized as not permissible for determining the validity of a patent in view of settled legal position enunciated hereinabove. The use of such PVC metallized films has already been in existence for both pharmaceutical and food industry. There is enough material on record to substantiate this. The plaintiff however claims invention in respect of the manner of use of the components. Thus the extent of metallization of PVC film to maintain translucency, therm

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oformable metallized PVC films and the thickness of PVC film to prevent the migration of additives is what is claimed to be the basis of the patent. The above shows that the features and qualities claimed by the plaintiff of the invention including use of PVC, a metallised layer, thermoformability, and transparency/translucency were known as a combination as well. It prima facie does not appear to have an inventive quality. It is thus not a case of defence of mosaicing by the defendant but of the plaintiff using known factors and materials to make some adjustments and then claiming patent in the same to preclude others from doing the same. This would not be permissible. I am thus of considered view that the patent does not prima facie satisfy the test of a new invention and was already known to the trade. d)In 1986 (6) PTC 195 (SC) in Civil Appeal No. 1490 of 1984 in Monsant Company Vs. Coramandal Indag Products (P) Limited, it was decided that 'From the beginning to the end, there was no secret and there was no invention by the plaintiffs. The ingredients the active ingredients the solvent and the emulsifier, were known : the process was known, the product was known and the use was known. The plaintiffs were merely camouflaging a substance whose discovery was known through-out the world and trying to enfold it in their specification relating to Patent Number 125381. The patent is, therefore, liable to be revoked.' 14. If we apply these decisions to this case, we cannot grant a patent to this invention. 15. In view of above findings and conclusion we are inclined to Rule that on the ground of lack of novelty, obviousness, lack of inventive step and insufficiency, the patent No. 198370 is entitled to be revoked.
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