This is a PPT on the Kilta Case. It is useful for BA.LLB, BBA.LLB and LLM students for IPR. Students should refer to textbooks and reference books for in-depth study.

1. THE KILTA CASE (“Dhanpat Seth And Ors. vs Nil Kamal
Plastic Crates Ltd.” (2008)
Shraddha Pandit
Asst. Prof. Of law
BA, LLB, LLM, PGDM (IPR), Diploma(GERMAN)
Pursuing Ph.D.

2. What is patent?
Section 2 (1) (m) of the Patents Act (1970) defines patent as “ patent means a
patent for any invention granted under this Act.” A patent is a document, issued,
upon application, by a government office (or a regional office acting for several
countries), which describes an invention and creates a legal situation in which the
patented invention can normally only be exploited (manufactured, used, sold,
imported) with the authorization of the owner of the patent. In a number of
countries, inventions are also protectable through registration under the name of
“utility model” or “short-term patent.”
Section 2 (1) (j) of the Patents Act (1970) defines invention as “invention means a
new product or process involving an inventive step and capable of industrial
application.” Invention means a solution to a specific problem in the field of
technology. An invention may relate to a product or a process.

3. Three things can get patented in India:
1)Product
2) Process
3) Inventive Step
(S.3 of the Patents Act (1970) lays down the categories of inventions which cannot
be patented, eg. bombs, nuclear weapons, surgical methods)
The protection conferred by the patent is limited in time (generally 20 years), after
which the patent becomes the subject matter of public domain.

4. What are Traditional Knowledge (TK) and Traditional
Cultural Expressions (TCE)?
Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed,
sustained and passed on from generation to generation within a community, often forming part
of its cultural or spiritual identity.
There is no specific definition of TK or TCE at the international level, it can be said that: TK
embedded in the cultural traditions of regional, indigenous, or local communities. Which may
result from intellectual activity in a traditional context, and includes know-how, practices,
skills, trade secrets and innovations.
Traditional knowledge can be found in a wide variety of contexts, including: agricultural,
scientific, technical, ecological, artistic and medicinal knowledge as well as craftsmanship,
handicraft, biodiversity-related knowledge.

5. How are these protected?
While scientific inventions can be protected under the statutory law of patents
(Patent Act, 1970 and Rules made thereunder), TK and TCE are not protected
under any specific statute.
They are passed on from generations to generations without any written documents
as a part of oral narrative.TK and TCE typically distinguish one community from
another. They are intertwined with the folklore, ancient wisdom and tribal culture.
They form a part of the knowledge, crucial for subsistence and survival, based on
accumulations of empirical observation (experimentation) and on interaction with
the environment.

6. Case study: “Dhanpat Seth And Ors. vs Nil Kamal
Plastic Crates Ltd.” AIR 2008 HP 23 : 2008 (36) PTC
938 NULL(also known as the Kilta case)
Category of Case: Civil, IPR
Sub-category: Landmark case for Infringement, Revocation of Patents, Injunction,
Pendency of suits and delay in justice.
Decided by Court: High Court of Himachal Pradesh

7. Facts of the case
A patent was granted to the plaintiffs for a “device used for manually hauling
agricultural produce”, on the basis of its alleged similarities to a traditional
handicraft of Himachal Pradesh called “kilta” (an-all-purpose bamboo basket used
to carry any type of load, supported by a rope and tied to the forehead). The
plaintiffs were granted a patent for the specifications as well as the design of the
device resembling the Kilta. The inventor of the device was Mr.Dhanpat Seth.
In this case, the plaintiffs had averred that the defendant had infringed their patent
rights by manufacturing the patented device and by selling it to the Himachal
Pradesh Government. The defendants, Nilkamal Plastic Ltd. being manufacturers
of various plastic products, also supplied the infringing products in various states
across India without having any permission to do so. The plaintiffs filed for a
permanent injunction against this, which was subsequently denied by the Court.

8. Contentions by the Plaintiffs
They alleged that the patentee (defendant) had fraudulently obtained a the patent
on the plastic device (container made of synthetic polymeric plastic), which was
made by copying the original patented product. It was improved upon the same by
inventing longer baskets made up of synthetic polymeric material and by attaching
removable harnessing which enabled farmers to tie the basket to the waist instead
of the forehead. In effect, they claimed that this produced better orthopedic results
since the traditional kilta used to cause severe back pain to farmers.Thus, they
contended that the patent was wrongly granted.
They also argued that there was no novelty or invention, it was the plastic replica
of an old device known as the Kilta, which was popular amongst hilly communities
in India. They mainly argued that the patented product is not an “invention” under
Section 2(1)(j) of the Patents Act, 1970 since it lacks novelty and an “inventive
step” i.e., it is merely an application and a “workshop improvement” upon the kilta,
which was well-known long before the prior date of the patent application.

9. The plaintiff thus alleged that the orders violated the norms and procedures which
were required to be adopted and that they supplied goods worth 72 lakh rupees was
a massive fraud. Further, it was also admitted by the defendants that they supplied
goods worth 40 Lakh rupees to various other parties. The plaintiffs thus allege that
the defendants have infringed their patent after copying it and making cosmetic
changes to the same. The plaintiffs urged that they faced huge loss and damage due
to the acts of the defendants and claimed for damages worth Rs. 1 Lakh INR for
every 1000 long baskets copied and sold by the defendants.

10. SOME IMAGES OF THE KILTA

11. Contentions of the Defendant
The defendants contended that the patent granted to the plaintiffs was wrongfully
granted and is liable to be revoked under Sec. 64 of the Patents Act as it lacked
novelty or inventiveness. The defendants argued that the device manufactured by
the plaintiffs were neither new manufacture nor art. The defendants argued that
their invention relieved the backache of tea-pluckers of the hilly State of Himachal
Pradesh, due to the light-weight plastic material. It was further argued that the
plaintiffs cannot claim a monopoly over a simple basket and that the plaintiff can
only claim rights over a product if it is inventive and novel.

12. ISSUES BEFORE THE COURT
1. Whether there exists a legal and a valid Patent of a 'Kitla' with the plaintiffs?
2. Whether the plaintiffs are entitled to the grant of a decree for a permanent
prohibitory injunction restraining the defendant from infringing Patent No.195917
in any manner whatsoever?
3. Whether the plaintiff is entitled to damages on account of profits and mesne
profits as prayed for?
4. Whether the goods supplied by the defendant by infringement of the Patent are
liable to seizure, and destruction?

13. Court’s Decision
The Court based its decision on several provisions of the Patents Act, 1970, few of which I
have discussed below:
Section 2(1)(ja): Clearly, the defendant’s product merely amounted to a “plastic kilta”, as has
rightly been pointed out by the Court. The Court applied the test of “inventive step” defined
under Section 2(1)(ja) i.e., whether the product undertakes “technical advance, as compared to
existing knowledge” and/or whether it has “economic significance”, that makes the invention
not obvious to a “person skilled in art”. It was decided that the plaintiffs had successfully
proven their case by showing that changes in size or that of raw material could not contribute
to a “technical advance” or have “economic significance”.

14. Since their product did not have any significant inventive features and bore striking resemblance to the kilta,
it was decided that the patented product would appear obvious to a “person skilled in art”.
Section 3(d): The Court held that the product attracts Section 3(d) since mere replacement of raw material
(bamboo replaced by plastic) amounted to merely a “new discovery of a known substance” i.e., the traditional
kilta and that there was no “enhancement of the known efficacy” since the orthopaedic superiority of the
product was not aptly testified by any surgeon.
Section 3(f): States that a mere duplication of a known device will not amount to an invention being made.
Section 3(p): Stating that the kilta had been used in the “countryside of Himachal Pradesh since times
immemorial”, the Court stated that the same amounted to “traditional knowledge” under Section 3(p) and
that the product was a “mere aggregation or duplication of traditionally known components”.
Based on the above deliberations, the Court revoked the patent grant under Section 64 of the Patents Act,
1970.

15. Justice delayed is Justice denied!
This case serves as a typical example of pendency of litigation in Indian Courts since
the matter, which was initiated by a suit filed in 2005, has been pending for 13
whole years.
It only recently came into light on 29th June 2018, when a single judge bench of
the Himachal Pradesh High Court revoked the aforementioned patent grant.

16. Today’s Takeaway Message:
The plaintiffs cited the introduction of lightweight nylon baskets for tea-pluckers in Sri Lanka as
prior art. Surprisingly, the Patent Office did not consider the local example of the kilta as prior art or
give consideration to the fact that the patent grant may be barred under Section 3(p). Later, in 2004,
the application for the patent by the defendant was accepted and the Patent Examiner’s reasons for
doing so were not specified. It is, hence, quite baffling and mysterious that the Patent Office granted
a patent to the plaintiff’s product, despite existing prior art and when it was so clearly based on the
traditional kilta.
The main problem in assessing patent applications based on traditional knowledge stems from the
fact that “traditional knowledge” remains undefined. As has been noted earlier, the Himachal
Pradesh High Court proceeds to assume that the kilta comes under the ambit of “traditional
knowledge” in Section 3(p) on the vague assumption that it has been around since “time
immemorial”. It does not lay down any test or parameters by which a certain invention can be said to
be based on “traditional knowledge” or termed as an “aggregation or duplication of traditionally
known components”.
The question, therefore, still persists; how is the Patent Office to define “traditional knowledge” and
conclude that a patented product stands barred under Section 3(p)? Judicial interpretation on the
same is required for efficient examination of future patent applications based on Indian traditional
knowledge and prevention of needless and lengthy litigation.

17. THANK YOU