Facts:
This case is based on Intellectual Property Rights which arise under Patent Act. The Plaintiff has preferred this application; it seeks to restrain the defendant, from pressing its application for revocation of its patent, under section 107 of patents act, 1970. Defendant filed for revocation and rectification of plaintiff’s patent before the Intellectual Property Appellate Board, under provisions of section 117G as well as for cancellation of plaintiff’s patent under section 107 of the patent act. The plaintiff argues that the defendant can’t take recourse to both defence of revocation as well as apply for cancellation. The Doctrine of Election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different. A patent, unlike other intellectual property rights, does not come with a presumption. In this case, there is an independent remedy for cancellation or revocation of patents, under section 117G, to the board. In addition, in the event of a suit, the defendant, besides contending non-infringement, can also counter claim and seek revocation, under section 107. Though seemingly overlapping, the remedies may not be necessarily availed simultaneously. It is held that the reliefs claimed in the application can’t be granted, the same is accordingly rejected.

Facts:
The Plaintiff has filed a suit for infringement of registered design under section 22 of Design Act, 2000 against the Defendant. The Plaintiff has invented an S-shaped spatula of a cream for hair removal. The Defendant has infringed the Plaintiff’s registered design. The Learned Single Judge has passed ex-part order in favor of the Plaintiff. The Defendant filed an application for vacation of injunction on the ground that the registered design of the Plaintiff is not new/or original and the same was also registered and published abroad prior to the registration in India. The Defendant has taken one more ground that the Plaintiff has not disclosed material facts regarding the design which was registered in various countries prior to the registration in India. The Learned Single Judge vacated the interim order dated 08th January 2007 which was passed in favor of the plaintiff. The Learned Single Judge allowed the Defendant’s application for vacation of injunction. The Plaintiff has filed the appeal before this Hon’ble Bench.

That a person who has registered his design abroad will be entitled to get his design registered in India within a period of six months of the application for protection/registration. The Appellant/Plaintiff’s registered design was published in an Australian magazine in December 2000 prior to the registration of the design in India in December 2003. The publications of such design its availability in public domain in India and/or abroad.  The consequence the period of six months of making of the application abroad and there would be invalidation of the design registered abroad in view of Section 44(2) of The Design Act, 2000.      
The mentioned case was kept in front of Hon’ble Chief Justice of High Court for further direction.