SULPHUR MILLS LIMITED vs DHARMAJ CROP GUARD LIMITED & ANR.
$~
* 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 Suman, Advs. for D-2
+ 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.
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
J U D G M E N T
% 18.03.2024
1. The plaintiff in all these suits is the registrant of Indian Patent IN 282429 (IN429) 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 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 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.
(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 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 plaintiffs own earlier Indian Patent Application 655/MUM/2000 (hereinafter referred to as App 655) was for an improved fungicide/miticide, 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 the soil.
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 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.
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 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 (U/S 11 A)
02/02/2007
Date of issuance of First Examination Report (FER)
17/05/2007
Date of Filing of response to First Examination Report (FER) (Reply to FER)
06/05/2008
Date of Grant
11/04/2017
Date of Publication of grant of Patent u/S 43(2)
14/04/2017
(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.
(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.
(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
(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 (US373) 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 Report (Reply to FER)
Response to First Examination Report (Reply to FER)
Pre-grant oppositions
By Jaishil Sulfur & Chemical Industries
By Jaishil Sulfur & Chemical Industries
By Mr. Vilash Shetty
By Mr. Vilash Shetty
By M/s Safex Chemicals India Pvt. Ltd.
By M/s Safex Chemicals India Pvt. Ltd.
By Haryana Pesticides Manufacturers Association
By Haryana Pesticides Manufacturers Association
By M/s Jailaxmi Industries
By M/s Jailaxmi Industries
By M/s Swati Petro Products Pvt. Ltd.
By M/s Swati Petro 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 Pvt. Ltd.
By M/s Safex Chemicals India Pvt. Ltd.
By Haryana Pesticides Manufacturers Association
By Haryana Pesticides Manufacturers Association
By Dharmaj Crop Guard Limited/Defendant No. 1
By Dharmaj Crop Guard 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 plaintiffs 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 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 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 IN429, 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 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 plaintiffs 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.
(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 JPCLs test report and Dr Patanjalis affidavit, it became apparent that the defendants 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.
(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 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.
(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, 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, 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 (SIFIR), who found that the defendants 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 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 plaintiffs patent on any of the grounds envisaged 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 defendants challenge to the validity of the plaintiffs 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 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 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 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 10th 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. 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.
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 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 defendants product infringes the plaintiffs patent, and, secondly, whether the defendant has set up a credible challenge to the validity of the plaintiffs 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 defendants product 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.
(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.
*****
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.
*****
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%
Flow point: 0
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
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 plaintiffs contention that 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%).
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