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Judgment
Prabha Sridevan, J
This is an application under Section 64 of the Patents Act, 1970 for revocation of the patent granted for ""Head scarf cum neck covering apparel
for women in patent No. 213756 applied on 20.10.2006. The date of grant is 15.1.2008. The Respondent obtained a patent for an invention involving
merely stitching of a head scarf and muffler together, and ordinary persons like the Petitioners who had a modest livelihood were placed under
constant threat. The legal issue in all the matters is one and the same, but we will deal only with the facts in ORA/33/2009/PT/KOL and the result in
ORA/32/2009/PT/KOL, and ORA/34/2009/PT/KOL will follow this.
2 . The field of invention relates to a head scarf for covering head and neck and ""alternatively exposing the front face of the wearer"".
Basic object of the invention: The basic object of the invention is to provide for a head scarf cum neck covering for woman, which would on one
had provide for the desired covering for the head, ear and neck of women such as required for protection from cold conditions and at the same time
essentially maintain the much required facial beauty and attractive outlook for the wearer and further also serve as a designer wear/apparel. Further
objects relate to effective, comfortably covering the head, maintaining the facial attraction etc.
4 . Summary of Invention: According to the basic aspect of the present invention there is provided a head scarf cum neck covering apparel for women
comprising:
a. substantially rectangular shaped neck covering portion;
b. a cap type head and ear covering portion secured along one of the longitudinal edges of the said rectangular neck covering portion;
c. said cap portion adapted such that on wearing the said cap is adapted to cover completely the head and ear region providing an open front to reveal
the face of the wearer with out without the immediate front of the head just above the forehead;
d. a converging rear of the cap type head and ear covering portion providing for a concaved portion adapted to accommodate/surround comfortably
the head including any knotted/bundled hair of long hair women.
Claim:
A head scarf cum neck covering apparel for women comprising: a substantially rectangular shaped neck covering portion;
a cap type head and ear covering port secured along one of the longitudinal edges of the said rectangular neck covering portion;
said cap portion adapted such that on wearing the said cap is adapted to cover completely the head and ear region providing an open front to reveal
the face of the wearer with or without the immediate front of the head just above the forehead;
a converging rear of the Cap type head and ear covering portion providing for a concaved portion adapted to accommodate/surround comfortably the
head including any knotted/bundled hair of long hair women.
A head scarf cum neck covering apparel for women as claimed in claim 1 wherein the cap type head and ear covering portion is obtained of part
comprising two substantially parallel longitudinal edges of which one is bigger and the other smaller in length defining a substantially trapezoidal
configuration, with the end regions of the smaller of the two parallel edges close together such that the two non parallel sides of the trapezoidal shaped
part are disposed alongside in a continuous line which are stitched to atleast a portion of a longitudinal edge of the rectangular neck covering portion
such that the said bigger of the parallel longitudinal edge of the cap portion assumes a circular configuration with a concaved inside to accommodate
the head portion, the smaller longitudinal edge being bundled and stitched together to provide for plurality of pleated/streaked extensions spreading
from said bundled and stitched region.
a head scarf cum neck covering apparel for women as claimed in anyone of claims 1 or 2 wherein said stitching of the two non parallel sides of the
trapezoidal shaped part disposed alongside in a continuous line to atleast a portion of a longitudinal edge of the rectangular neck is at a position such
that the cap region is disposed closer from one end of the neck covering than from its other end and provides for substantial lengths of the rectangular
neck covering to hang from the front and also from the back upon wrapping of the neck.
A head scarf cum neck covering apparel for women as claimed in anyone of claims 1 to 3 comprising selectively variety of designer
patterns/surface ornamentation and/or colours/colour combinations.
A head scar cum neck covering apparel for women as claimed in any of claims 1 to 4 wherein said rectangular neck covering portion is of
sufficient length such that on covering the head and ear by the cap type portion the rectangular neck covering portion provides for wrapping of the
neck along one end of the rectangular neck covering portion and its disposition at the rear while the other end of the rectangular neck covering is
disposed at the front of the wearer.
A head scarf cum neck covering apparel for women as claimed in anyone of claims 1 to 5 obtained of woolen, cotton or any other variety of woven
and/or non-woven fabric/textile material.
7 . A method of producing the head scarf cum neck covering apparel for women as claimed in anyone of claims 1 to 6 comprising:
Providing a substantially rectangular neck covering portion of any woven/non woven material;
Providing the cap type head and ear covering portion comprising providing any woven/non-woven material with two substantially parallel longitudinal
edges of which one I s bigger and the other smaller in length such as to define a substantially trapezoidal configuration, bringing the end regions of the
smaller of the two parallel longitudinal edges close together such that the two non parallel sides of the trapezoidal shaped part are disposed alongside in
a continuous line which are then stitched to alteast a portion of a longitudinal edge of the rectangular neck covering portion, the said biggher of the
parallel longitudinal edge of the cap portion adapted to assume a circular configuration with a concaved inside to accommodate the hear portion, the
smaller longitudinal edge being bundled and stitched together to provide for plurality of pleated/streaked extensions spreading from said bundled and
stitched region.
8 . A method of producing the head scarf cum neck covering apparel for women as claimed in claim 7 wherein said smaller longitudinal edge after the
stitching of the non-parallel sides is bundled by providing a threaded needle to traverse close adjacent its edge and thereafter tightening the threaded
link to bundle the end region and in the process create the said pleated/streaked extensions spreading from said bundled and stitched region.
9 . A method of producing the head scarf cum neck covering apparel for women as claimed in anyone of claims 7 to 8 wherein the said stitching of
the two non parallel sides of the trapezoidal shaped part on a portion of a longitudinal edge of the rectangular neck covering portion is at a position
such that the cap region is disposed closer from one end of the neck covering than from its other end and provides for substantial lengths of the
rectangular neck covering to hand from the front and also from the back upon wrapping of the neck.
1 0 . A head scarf cum neck covering apparel for women substantially as herein described and illustrated with reference to the accompanying figures.
Abstract:: A HEAD SCARF CUMNECK COVERING APPAREL FOR WOMEN
A head scarf for covering head and neck and which would provide for the required covering of the are of the head, ears and the neck and attractively
expose the front face of the wearer, importantly, the head scarf basically involves a neck covering portion (1!) and a cap (3) for covering the head and
ears. The headscarf is user friendly and extremely comfortable to wear especially for women and is adapted to ensure proper comfortable disposition
due to the provision of bundled (3B) rear at the rear of the cap (3) even in case of women having long hair bundled / knotted at the rear of the head.
The head scarf of the invention would serve effectively to cover the head, ears and neck of women such as required during winter to cover form cold
and also serve as an attractive headgear as a fashion outfit or for any occasion requiring women to cover their head, ear and neck.
7 . On 27.09.2006 a notice was issued by the counsel for Respondent stating inter-alia that the Respondent were in the business of creating,
marketing, manufacturing textile fabric based articles, in particular head scarfs woven, knitted or involving in particular such new and original designs
as were registered under Designs Nos. 203935 and 203936 of the Respondent's name and that even a cursory look at the packaging/Trade Dress
wrongfully adopted by applicant would make it evident that the applicant have not only slavishly copied/applied the basic registered design of our
clients on the applicant's Head Scarfs but also all the distinctive design features appearing in the packing/Trade Dress of the Respondent's designer
products have been copied. The design of the Head Scarfs and the stated related Trade Dress under which those are being sold as adopted and used
by the applicant are such a slavish copy of the distinctive registered designs of the Head Scarfs and the Trade Dress of the Respondents that any
purchaser of average intelligence and imperfect recollection, not to say of the illiterate customers, is bound to be deceived into believing that the
products thus sold by the applicant are in fact the products of the Respondents bearing the eye appealing and distinctive copyrighted Head Scarf
designs covered under the said registered design Nos. 203935 and 203936.
8 . On 29.01.2009, a notice was sent by the Respondent's counsel informing the applicant or Petitioners that the learned District Judge at Barasat had
granted a status quo in respect of infringement of patent No. 213756 in Title Suit No. 2 of 2009, while observing ""on plain eye there are differences
between the products of the Plaintiff's and the Defendant's.
9 . The matter came up before us at the Circuit Bench Sitting at Kolkata on 21.06.2011. Learned Counsel Shri Majumdar along with Dr. Sanchita
Ganguli appeared for the applicants.
Learned Counsel for the applicant Shri Majumdar submitted that his clients who are poor persons who are being harassed on the strength of this
patent and that the practice of the Respondent herein is not to be present when the matter is heard or to change the counsel. We find from the records
that today (21.6.2011) Mr. Anjan Sen who had appeared for the Respondent had submitted a letter that they had no instructions and they will no
longer be appearing for the Respondent in this case and the other three matters and when this submission was made in the morning we awaited until
post-lunch session to allow the Respondent an opportunity to appear in person or through counsel. But since there was no appearance we heard the
matter.
The learned Counsel for the applicant Shri Majumdar submitted that patent grant has been obtained on false suggestion or representation. The
Respondent ought to have disclosed that the patent was already published and published at the instance of Respondent herself vide Design No. 203935
dated 18.04.2007 and 203936 dated 18. 04.2006. The learned Counsel submitted that the patent is really two distinct and known objects brought
together and in juxtaposition, each discharging its own function. There is no novelty in the invention. The patentee has used an ordinary machine and
merely stitched a muffler to a cap. If one wore a cap and a muffler the same object would be achieved. It is not patentable under Section 3 (f) of the
Act.
The complete specification does not reveal the method of manufacture. In the design application the Respondent had claimed that the novelty lay
in the surface ornamentation. Then realizing that anyone can alter the surface design without infringement had come up with the patent application.
The learned Counsel for the applicant referred to the following citations:
1983 PTC 373 The Wimco Ltd., Bombay v. M/s Meena Match Industries
8 . The word ""published"" used in Sections 43 and 51-A of the Act has not been defined in the Act. Publication within the meaning of the Act means
the opposite of being kept secret. It is published if a design is no longer a secret. There is publication if the design has been disclosed so the public or
the public has been put in possession of the design. Russel Clarke in Copyright in Industrial Designs, Fourth Edu (pages 41-42 says):
...it is insufficient, and there will be publication if the knowledge was either:
(1)Available to members of the public; or
(2)Actually in fact shown and disclosed to some individual member of the public who was under no obligation to keep it secret
It is not necessary that the design should have been actually used. There will just as much be publication if it is shown it was known to the publication
if it is shown that it was known to the public, without ever having been actually put into use. thus, publication may be of two types:
(a) Publication in prior documents,
(b) Publication by prior user.
9/10. The first material impeachable evidence of the publication of the design in India prior to the date of registration is contained in the Government of
India publication of the Patent Office, Calcutta: Specification No. 29046 dated 17.9.1942 (accepted 3.4.1943) relating to improvements in or relating to
container for match boxes. It is Annexure SM-2 with the affidavit dated May 25, 1981 of Shri S. Maheswaran.
It is true that in the case of paper publications such as design specification or in the magazines the anticipation consists of the drawings. There are,
however, clear and unmistakable directions in the anticipation in this case of the striking and igniting surface and how to use it. The features of the
friction application incorporated in the match box are dictated solely by the function. The pattern/design possesses no additional features. The previous
idea will act as an anticipation of the later design. The eye and the eye alone, as Section 2(5) of the Act says is to be the judge of the identity, and to
decide whether one design is or is not an anticipation.
What actually constitutes the design is, therefore, that peculiar combination and arrangement of lines which give such features. This s what has been
laid in these cases that design for a pattern may consist of a mere arrangement of straight lines or stripes or a pattern on the border of the shawl. It
may be a printed or woven or embroidered designs, but these must be new or original. The design may be applied to any of article but some novelty or
originality must exist in a substantial degree otherwise it would paralyse the industry to make the design a trap for honest traders. There is no novelty
originality as the identical design has already been applied to the match boxes. I have already discussed at length the evidence of pre-publication of the
design which shows prior application to the same class of goods, namely, match boxes. The same reasoning would apply.
 2. Atlantic Words v. Brady, (1883) 107 U.S. 192
The design of the patent laws is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a step in
advance in the useful arts. Such inventors are worthy of all favour. It was never the object of those laws to grant a monopoly for every trifling device,
every shadow of a shade of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary
progress of manufacture. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class
of speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented
monopolies which enable them to lay a heavy tax upon the industry of the country without contributing anything to the real advancement of the Article
It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to law suits and vexatious
accountings for profits made in good faith.
In re Johnson, 747 F.2d 1456 (Fex.Cir.1984)
We find Appellant's interpretation of Holiday persuasive and hold that the Board did not err in its conclusion of obviousness. The problem of
obviousness considered by the Patent and Trademark Office, and to which we address ourselves here, arises under Section 103 of the Patent Act. It
is a problem of patent law and not of chemistry. In re Papesch 315 F.2d 381, 386, 137 USPQ 43, 47 (CCPA 1963). Thus, the requirement of
unobviousness in the case of chemical inventions is the same as for other types of inventions. A patent will not be granted where the invention, when
compared to the prior art, is considered to have been obvious to a person having ordinary skill in the art at the time the invention was made. 35 U.S.C.
Section 103. This is the mandate to which the examiner, the board and this Court must look.
In In re Payne, 606 F.2d 303, 1979 203 USPQ 245 (CCPA) ), a case considering claimed pesticide compounds, the CCPA again addressed the
use of comparative showings and again held that an applicant need not test compounds taught in every reference. ""However, where an applicant tests
less than all cited compounds, the test must be sufficient to permit a conclusion respecting the relative effectiveness of applicant's claimed compounds
and the compounds of the closest prior Article"" Payne, 606 F.2d at 316, 203 USPQ at 256. Se In re De Blauwe, 736 F.2d 699, 705
222 USPQ 191, 196 (Fed. Cir.1984) ("" an applicant relying on comparative tests to rebut a prima facie case of obviousness must compare his claimed
invention to the closest prior Art"").
Boards of Appeal of the European Patent Office T 0956/05-3.3.02
3.1.6 Accordingly, the board can only conclude that the subject matter of each of the claims 1 of the main request or of the second auxiliary request
does not involve an inventive step, as it merely amounts to taking the other of a pair of two well known propellants in the context of avoiding ozone
damaging propellants of the chlorinated hydrocarbon type.
5 . AIR 1982 SC 1444 Bishwanath Prasad Radhey Shyam v Hindustan Metal Industries
2 4 . 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 invariable raised by a Defendant, and in fact 'subject matter' is the crucial test, for which they may well be novelty not
involving an 'inventive step' it is hard to conceive how there can be an 'inventive step' without novelty....
The expression ""doest not involve any inventive step"" used in Section 26(1) (a) of the Act and its equivalent word ""obvious"", have acquired special
significance in the terminology of Patent Law. The obviousness has to be strictly and objectively judged. For this determination several forms of the
question have been suggested. The o the one suggested by Salmond L.J. in Rado v. Johon Tye & Son Ltd. (1967) R.P.C. 297 is apposite. It is
whether the alleged discovery lies so much out of the track of what was known before as not naturally to suggest itself to a person thinking on the
subject, it must not be the obvious or natural suggestion of what was previously known...
For all the reasons aforesaid, we have no hesitation in holding that the learned Judges of the Appellate Bench were in error in reversing the
findings of the trial court on issues 1 and 1-A. The learned trial judge was right in holding that the patented machine was neither a manner of new
manufacture or novel improvement, nor did it involve any inventive step, having regard to what was publicly known or used at the date of the patent.
The grant of the patent in question was therefore, invalid and was liable to revoked on the grounds mentioned in Clauses (d) and (e) of Section 26(1)
of the Act.
1887 RPC 62 Williams v. NYE Patent.-Action for infringement - combination of the two old machines.-Want of subject matter.-invention.-
invalidity.
W. took out a patent for an improved mincing machine which was in effect a combination of a mincing machine and a filling machine, both of which
were old. He brought an action for infringement against N. & Co who put in issue the validity of the patent on the ground that the alleged invention
consisted simply in joining two well-known machines, and was not subject matter.
Held at the trial that the patent was a combination of old things in the simplest possible manner, that there was not sufficient invention, and that the
patent was invalid.
The Plaintiff appealed
Held affirming the judgement of the court below, that there was not sufficient invention to constitute subject matter.
We have considered the submissions of the learned Counsel for Appellant. The Respondent's own notice dated 27.09.06 referred to the prior art in
respect of the patented invention. The illustrations and pictures filed along with the paper book would show that the subject matter of design numbers
203935 dated 18.04.2006 and 203936 dated 18.04.2006 and the subject matter of the patent application 213756 dated 20.10.2006 are one and the
same. The Respondent had not disclosed the existence of the prior art and therefore on the ground of false suggestion or misrepresentation the
Respondent's patent is liable to be revoked. Even on the ground of invention and novelty we do not think that the invention is either novel or non-
obvious, nor is there an inventive step. It is submitted by the Respondent that his scarf are well known and used by all and so is the cap. All that he
has done is to stitch the cap and the muffler or scarf together. Any person who wanted to protect her face and hair would in fact have to wear the
scarf and cap individually to achieve the same result. There is no doubt that the complete specification contains flowery language describing how the
visual attraction will be enhanced, how the hair of the lady will be protected. But if the verbal jugglery is removed we are left with a cap stitched to a
muffler and nothing more. This in fact, is merely a juxtaposition of known components i.e., cap and muffler working independently and such
combination are not patentable under Section 3 (f). Therefore, it is difficult to accept that this is an invention which deserves to be patented. In the
Atlantic Words v. Brady, (1883) 107 U.S. 192 the US Supreme Court had an occasion to consider something similar. What was patented was
attaching a screw to the forward end of a propeller dredge boat, and with this patent had created for himself an exclusive privilege, thereby causing
fear and apprehension in persons pursuing their business honestly. In this case the applicants who are ordinary people selling muffler and caps are
being harassed by the Respondent on the basis of an alleged invention which cannot be held to be patentable at all.
In re Johnson 747 F.2d 1456 (Fed.Cir.1984) the US court of appeal held that no patent can be granted if an invention is obvious when compared to
the prior Article In the present case, the prior art is the Respondent's own design which is identical to the patented invention.
In Case No T 0956/05-3.3.02 all that the inventor had done was to bring together the two well known propellants to avoid oxygen damage, the court
held that this does not amount or involve an inventive step. It is so in the present case, too.
In AIR 1982 SC 1444 the alleged invention the Plaintif had was means of mounting and holding metallic utensils for the purpose of turning before
polishing. The Supreme Court held that the patented machine is no more than a workshop improvement. It is a mere collocation of more than one
integer or things which does not qualify for the grant of patent. This decision squarely applies to the case on hand.
In 1887 RPC 62 also the Court held that the cutting part which cut the meat and the filling part along with the metal screw by which the cut meat
was filled was not an invention and that the patent applicant had simply taken a Gilbert and Nye's patent and substituted the Donald's improved cutter
in the place of Gilbert's Cutters he had held that this was not entitled to patent.
In 1983 PTC 373 the pattern and design had already been applied to the match boxes in leather case and they held that while the specific design
would be protected, the monopoly of trade in respect of common design, previously published should not be encouraged. This too applies to the present
case squarely.
Therefore, applying the above decisions and on facts, we find that the alleged invention lacks novelty and it is not patentable under Section 3(f). It
is obvious being merely a combination of known components working independent of each other. It was publicly known/publicly used by the
Respondent's own design before filing of the patent application, and therefore, the alleged invention was not patentable. Accordingly, the application
for revocation ORA/34/2009/PT/KOL is hereby allowed and the Patent No. 213756 is revoked. M.P. No. 20/2009 stands closed. No order as to
costs.