However, no specific guidelines were followed. PubMed The objective of this health technology policy analysis was to determine, where, how, and when physiotherapy services are best delivered to optimize functional outcomes for patients after they undergo primary first-time total hip replacement or total knee replacement, and to determine the Ontario-specific economic impact of the best delivery strategy. The objectives of the systematic review were as follows: To determine the effectiveness of inpatient physiotherapy after discharge from an acute care hospital compared with outpatient physiotherapy delivered in either a clinic-based or home-based setting for primary total joint replacement patientsTo determine the effectiveness of outpatient physiotherapy delivered by a physiotherapist in either a clinic-based or home-based setting in addition to a home exercise program compared with a home exercise program alone for primary total joint replacement patientsTo determine the effectiveness of preoperative exercise for people who are scheduled to receive primary total knee or hip replacement surgery Total hip replacements and total knee replacements are among the most commonly performed surgical procedures in Ontario.
Physiotherapy rehabilitation after first-time total hip or knee replacement surgery is accepted as the standard and essential treatment. The aim is to maximize a person's functionality and independence and minimize complications such as hip dislocation for hip replacements , wound infection, deep vein thrombosis, and pulmonary embolism. Therefore, the said decision is of no relevance.
In any case, the contents of Ex. It is filed for a very limited purpose. In Smt. But, as I have said earlier, this decision also arose before the amendment of the Code by Amendment Act 22 of In any case, the affidavit of Dr. Mayilvahanan Natarajan is not sought to be filed as an examination in chief of a witness. The purpose of filing this affidavit is very limited.
Therefore, the decisions relied upon by the counsel for the first defendant would not clinch the issue. In this case, the affidavit Ex. But I would not be able to take for its face value, the claim made by Dr. Mayilvahanan Natarajan in his supporting affidavit Ex.
If he wanted to assert such a claim, either as a co-patentee or at least as an expert in the field, he is expected to get into the witness box, so that the defendants have an opportunity to cross examine him.
Since he did not choose to do so, I would not accept the contents of Ex. But, Ex. Keeping the above in mind, let me now examine the question whether the non joinder of the co-patentee is fatal to the claim of the plaintiff or not.
Sub-Section 1 of Section 50 of the Patents Act, makes it clear that where a patent is granted to two or more persons, each of those persons shall, unless an agreement to the contrary is in force, be entitled to an equal undivided share in the patent. After thus ensuring to all the patentees, an equal and undivided share in the patent under Sub-Section 1 , the Act also imposed an embargo under Sub-Section 3 of Section 50 to the effect that a licence under the patent cannot be granted and a share in the patent cannot be assigned by one of those persons except with the consent of the other person or persons.
However, this embargo was made subject to the other provisions and subject to Section 51 and to any agreement for the time being in force. But, in so far as the enforcement of the rights conferred by the Act is concerned, Sub-Section 2 of Section 50 enables each of the co-patentees to seek redressal, even without accounting to the other persons.
Sub-Section 2 of Section 50 reads as follows : "Subject to the provisions contained in this section and in Section 51 , where two or more persons are registered as grantee or proprietor of a patent, then, unless an agreement to the contrary is in force, each of those persons shall be entitled, by himself or his agents, to the rights conferred by Section 48 for his own benefit without accounting to the other person or persons.
The rights conferred by Section 48 of the Act are i the exclusive right to prevent third parties from the act of making, using, offering for sale, selling or importing for those purposes that product which is the subject matter of the patent and ii the exclusive right to prevent third parties from the act of using that process and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by a process which is the subject matter of the patent.
Therefore, it is clear from Sub-Section 2 of Section 50 read with Section 48 that each of the grantees or proprietors of a patent, is entitled by himself or by his agents, to enforce the rights conferred under Section 48 , for his own benefit without accounting to the other person or persons.
Coupled with the fact that under Section 50 3 , a co-patentee cannot even assign or grant a licence in respect of his share, without the consent of the other persons, the provisions of Section 50 2 makes the suit maintainable at the instance of one of the co-patentees.
The learned counsel for the first defendant relied upon the following decisions to contend that the non joinder of the co-patentee is fatal to the case : i Kanakarathanammal Vs. The decision in Kanakarathanammal arose out of a suit for recovery of possession of the properties inherited by the appellant in terms of the provisions of the Mysore Hindu Law Women's Rights Act , She did not implead her brothers as parties to the suit.
The Supreme Court held that under the Act, the appellant would be entitled exclusively to the property, if one particular provision of the Act was applied and that her brothers would also be entitled to a share if another provision of the Act was invoked. Therefore, the non joinder of her brothers, who would have otherwise become entitled to a share, was held by the Supreme Court to be fatal to the case of the plaintiff. In Seth Loonkaran Sethiya, the suit was for recovery of money. But, it was filed by a person claiming to be the sole proprietor of a firm.
One of the questions that fell for consideration was as to whether there was a dissolution of a partnership and whether the plaintiff had become the sole proprietor. The Court found that the claim of dissolution of partnership was false. Therefore, the Court eventually held the non joinder of the other partner as fatal to the case. In Shanmugham, the suit was for partition and it was found that some of the co-sharers were not made parties.
Since they were necessary even for the determination of the quantum of share to which the plaintiff was entitled, this Court held that the non joinder was fatal. Therefore, all these three decisions are not applicable to the case on hand. In the case on hand, I am concerned about a right statutorily conferred upon the plaintiff.
This right under Section 48 of the Patents Act, , is conferred upon each of the patentees in terms of Section 50 2.
The general principles governing mis-joinder and non joinder of parties falling in the realm of procedural law under the Code of Civil Procedure, cannot supersede or overtake a substantive right conferred by a Special Enactment. Therefore, I hold that the non joinder of the co-patentee Dr. Mayilvahanan Natarajan to the suit is not fatal to the institution of the suit, so long as he does not have a conflict of interest with the plaintiff.
The next objection to the maintainability of the suit is on the ground that the defendants 2 and 3 are not necessary and proper parties to the suit. The Apollo Hospitals, which is the second and third defendant herein, claimed that they are not manufacturing prosthesis. Whenever a patient admitted to their hospital requires a prosthesis, the defendants 2 and 3 look up to the market for the supply of prosthesis.
In other words, the defendants 2 and 3 claim to be no more than the customers of these products. The defendants 2 and 3 are neither manufacturers nor suppliers, but only consumers. Therefore, the defendants 2 and 3 claim that the suit is bad for mis-joinder of unnecessary parties.
The plaintiff has impleaded the defendants 2 and 3 as parties to the suit, in view of the fact that there was a newspaper article in the Hyderabad Edition of The Hindu dated The prosthesis was also given the name 'Apollo Midhani prosthesis'. Therefore, the plaintiff gained an impression that the common mega prosthesis was developed jointly by the first defendant and the defendants 2 and 3.
The plaintiff also filed a copy of the online edition of the newspaper of The Hindu dated While cross examining P. Therefore, it was contended by the defendants 2 and 3 that in the absence of a clear indication that the defendants 2 and 3 were associated with the manufacture and supply of the product, they should not have been impleaded. But, I am not able to sustain the objections of the defendants 2 and 3.
Order I Rule 3 of the Civil Procedure Code gives an indication of the persons, who may be joined as defendants. As per Order I Rule 3, all persons may be joined in one suit, where any right to relief in respect of or arising out of the same act or transaction is alleged to exist against such persons and if separate suits were brought, any common question of law or fact would arise.
It is not necessary for a plaintiff to succeed against all the defendants. Order I Rule 3 a uses the expression 'alleged to exist'. There is an allegation that the plaintiff has a right to relief against the defendants 2 and 3. Moreover, Order I Rule 7 gives a leverage for the plaintiff to join two or more defendants, wherever he is in doubt as to the person from whom he is entitled to obtain redress. In any case, no suit can be defeated by reason of mis joinder in view of the provisions of Order I Rule 9 of the Code.
Moreover, Section 48 a of the Patent Act, entitles the proprietor of a patent, to prevent others not merely from making or offering for sale or selling, but also from using or importing. The defendants 2 and 3 would certainly be persons using or importing for the purpose of sale, the product in respect of which, the plaintiff alleges and claims patent rights.
Therefore, the joinder of the defendants 2 and 3 as parties to the suit, cannot be said to be vitiated. At any rate, such joinder would not make the suit liable to be dismissed. Similarly, the non joinder of the co-patentee also does not make the suit not maintainable. State of Tamilnadu [CDJ SC ] in support of the contention that a report in a newspaper is only hearsay evidence and that it is not one of the documents referred to in Section 78 2 of the Evidence Act, , by which, an allegation of fact can be proved.
The presumption of genuineness attached under Section 78 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. There can be no quarrel about the above proposition. But, there is a small distinction. It may not be open to a Court to treat a newspaper report as having conclusively established the infringement of a person's intellectual property rights. But, it will be certainly open to a plaintiff, on the basis of newspaper reports to implead a person as a party to a suit.
In other words, the contents of the newspaper reports may be inadmissible in evidence. But, even without relying upon the newspaper reports, it is open to the plaintiff to implead defendants 2 and 3 if he suspected them of committing infringement.
Ultimately, the success of the plaintiff as against defendants 2 and 3 depends upon proof of infringement. But the fact that he may not have a chance to succeed against defendants 2 and 3 is no ground to conclude that they cannot be made parties. Hence, the issue Nos. The additional issue hinges upon the question whether the first defendant can be said to have defended themselves in the suit in a manner known to law or not. The written statement on behalf of the first defendant was signed and verified by one R.
Thanikachalam, in his capacity as Resident Manager-Marketing. On behalf of the first defendant, Mr. Gurulingam gave evidence as D. The plaintiff questions the authority of Mr. Thanikachalam to sign and verify the pleadings and of Mr. Gurulingam to depose on behalf of the first defendant. Let me first take up the issue relating to the authority of Mr. Thanikachalam to sign and verify the written statement on behalf of the first defendant.
Section 26 1 of the Civil Procedure Code mandates every suit to be instituted by the presentation of a plaint. Order VI Rule 1 of the Code defines the expression 'pleadings' to mean the plaint as well as the written statement. Rule 15 of Order VI lays down the procedure for verification of pleadings. Sub-Rule 1 of Rule 15 of Order VI reads as follows : "Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
A careful reading of Order VI Rule 15 1 shows that a pleading has to be verified either by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
Thanikachalam, who has signed and verified the written statement on behalf of the first defendant was examined as D. Therefore, all that is required by Order VI Rule 15 1 stands satisfied. Order VI Rule 15 does not give a list of persons, who alone are competent to sign and verify the pleadings.
Therefore, there is no bar for a person, who is acquainted with the facts of the case, to sign and verify the pleadings, unless otherwise the plaintiff establishes that a person, who is more competent and more knowledgeable about the facts of the case had deliberately failed to sign and verify the pleadings, in order to avoid appearance in court.
Order VIII of the Civil Procedure Code, which enlists the rules relating to written statement, set off and counter claim, does not anywhere indicate as to who is or who alone is competent to sign and verify the pleadings.
Order XXIX, which deals with suits by or against corporations, mandates under Rule 1 that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation, by the Secretary or by any Director or other Principal Officer of the corporation, who is able to depose to the facts of the case. Thanikachalam, who signed and verified the pleadings and who gave evidence as D. He also produced certified true copy of the extract of the minutes of the rd meeting of the Board of Directors of the first defendant as Ex.
The learned counsel for the plaintiff brought out during cross examination of D. Therefore, the learned counsel for the plaintiff contended that I should treat the first defendant as having remained ex parte in the suit. But I think it is too wide a proposition to be accepted. In other words, the leverage given to any person, who is acquainted with the facts of the case to sign and verify the pleadings under Order VI Rule 15 1 cannot be said to be taken away by Order XXIX Rule 1, C. As a matter of fact, Order XXIX Rule 3 confers power upon the Court to require the personal appearance of any Secretary or Director or other Principal Officer of the corporation, who may be able to answer material questions relating to the suit.
Therefore, the authority given to a person, who is acquainted with the facts, to sign and verify the pleadings, cannot be said to be diluted. In Wali Mohammed Khan Vs. In paragraph 20 of its judgment, the Bombay High Court held as follows : "In the case of companies the plaint can be signed by either a Secretary or a Director or other Principal Officer under Order 29, Rule 1, Civil Procedure Code, or any person duly authorized by the Company under Order 6, Rule The words "duly authorized" in Order 6, Rule 14, need not be restricted to mean authorized by proper written authority or by power of attorney.
There is authority for this view in Bengal Jute Mills v. In these cases it was held that a plaintiff can orally authorize another person to sign a plaint for him. The Managing Director of the plaintiff Company in the instant case, who has authority to file suits on behalf of the Company vide Article of the Company's Articles of Association , can orally authorize another person to sign the plaint for him on behalf of the Company. Plaintiff No. The Court further held that since a corporation is a juristic entity, even de hors Order XXIX Rule 1, the company can duly authorise any person to sign the plaint or written statement.
Apart from holding so, the Supreme Court went one step further and held that even in the absence of any specific authorisation or resolution by the Board of Directors, it is always open to a corporation to ratify the action of one of its officers in signing and verifying the pleadings. In the case on hand, the note put up by the Senior Manager - Law seeking the authority of the Chairman and Managing Director to authorise Mr.
Thanikachalam to sign and verify the pleadings, is marked as Ex. Therefore, it is clear that R. Thanikachalam had necessary authority to sign and verify the pleadings. In any case, the Board must be deemed to have ratified his action. Therefore, it cannot be said that the person, who signed and verified the written statement on behalf of the first defendant did not have the authority to do so.
Coming to the evidence of D. The first defendant had considered D. The principle of tension band plate is widely used in fracture fixation. Eccentrically loaded bones have one cortex loaded in tension and the other in compression Pauwels. Buttress plates are applied in order to support the metaphyseal areas of cancellous bones.
Reconstruction plates are thin plates which can be relatively easily contoured and are used in situations like fractures of the pelvis.State of Tamilnadu [CDJ SC ] in support of the contention that a report in a newspaper is only hearsay evidence and that it is not one of the documents referred to in Section 78 2 of the Evidence Act, , by which, an allegation of fact can be proved. Ultimately, the success of the plaintiff as against defendants 2 and 3 depends upon proof of infringement. Thanikachalam to sign and verify the written statement on behalf of the first defendant. The marking of the affidavit of Dr. The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. This invention has a femoral shaft, which comprises femoral anchoring component on one end, and the other end evolves, into the cylindrical femoral component, which corresponds to the anatomy of the normal bone. In elitist to prove the above studies, the plaintiff has not only bookish as exhibits the registration certificates along with the Attitudes and Claims, but has also filed several other fields. Section 26 1 of the Suggestive Procedure Code mandates every suit to be ran by the presentation of a historian. But, even without inundating upon the newspaper publications, it is open to the navy to implead defendants 2 and 3 if he wrote them of committing infringement.
In addition, Jefferson was himself an inventor of great note. In order to prove the above claims, the plaintiff has not only marked as exhibits the registration certificates along with the Specifications and Claims, but has also filed several other documents.
Consequently, I am entitled to see if any one of the Clauses from a to q of Section 64 1 would go to the aid of the defendants, by way of defence to the claim for infringement. Out of the 11 issues originally framed and the issue additionally framed, issue Nos. But, he did not choose to do so. Mayilvahanan, he provided stainless steel prosthesis; q that when the supply was stopped abruptly in May , Dr.
On behalf of the first defendant, Mr. In Wali Mohammed Khan Vs.
And he later wrote : 'Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time
The defendants 2 and 3 have filed a brief written statement. There is no dispute on facts that Dr. Mayilvahanan Natarajan is a co-patentee and that despite being aware of the institution of the suit, he has chosen to keep away.
Subsequently, five documents were marked as Exx.
P, subject to objections. Therefore, it was contended by the defendants 2 and 3 that in the absence of a clear indication that the defendants 2 and 3 were associated with the manufacture and supply of the product, they should not have been impleaded. While cross examining P. Therefore, the Court eventually held the non joinder of the other partner as fatal to the case. Relying upon the decision of this Court in Marneedi Satyam Vs. The case of the plaintiff is as follows: a that he founded a proprietary concern, originally known as Eagle Engineering Works and now known as Eagle Osteon Technologies, in the year , in the field of Precision Engineering; b that by tireless efforts and investment for over two decades, the plaintiff invented a wide range of Prosthesis for Limb Salvage surgery, for different parts of the human anatomy, which have been given the name "Custom Mega Prosthesis"; c that different types of Custom Mega Prosthesis for different parts of human anatomy were developed by the plaintiff to replace bone defects in the anatomical areas of the shoulder, hip, elbow, wrist, knee, ankle, pelvic region, etc.
Abdul Kalam in the year , the fourth defendant started purchasing CMPs made of titanium alloy from the first defendant; ak that since the CMPs are manufactured to suit the requirements of each patient, according to the design provided by the surgeon, there is no infringement of registered design; al that it was the co-patentee of the plaintiff, who conducts surgery in the fourth defendant institute and he has been instrumental in arranging for supplies; and am that therefore, the suit is liable to be dismissed.
Sundar, learned counsel for the plaintiff that so long as there is no counter claim on the part of the defendants, the defendants are not entitled to challenge the validity of the patent in a suit for infringement. The certificates of registration of these designs are filed as Exx. In any case, no suit can be defeated by reason of mis joinder in view of the provisions of Order I Rule 9 of the Code. The words "duly authorized" in Order 6, Rule 14, need not be restricted to mean authorized by proper written authority or by power of attorney. In any case, the contents of Ex.
Thanikachalam who signed and verified the written statement in his capacity as Resident Manager-Marketing of the first defendant, had due authority to represent the first defendant and whether DW1 had necessary authority to depose on behalf of the first defendant and if not, whether the written statement and the evidence of the first defendant has to be eschewed? Order I Rule 3 of the Civil Procedure Code gives an indication of the persons, who may be joined as defendants.
In Seth Loonkaran Sethiya, the suit was for recovery of money.