G.R. No. L-32160 January 30, 1982DOMICIANO A. AGUAS, petitioner, vs.CONRADO G. DE LEON and COURT OF APPEALS, respondents. FERNANDEZ, J.:This is a petition for certiorari to review the decision of the Court of Appeals in CA G.R. NO. 37824-R entitled "Conrado G. de Leon, plaintiff-appelle vs. Dominciano Aguas and F.H. Aquino and Sons, defendants-appellants," the dispositive portion of which reads:WHEREFORE, with the modification that plintiff-applee's award of moral damages is hereby redured to P3,000.00, the appealed judgment is hereby affirmed, in all othe respects, with costs against appellants. 1On April 14, 1962, Conrado G. de Leon filed in the Court of First Instance of Rizal at Quezon City a complaint for infringement of patent against Domiciano A. Aguas and F. H. Aquino and Sons alleging that being the original first and sole inventor of certain new and useful improvements in the process of making mosaic pre-cast tiles, he lawfully filed and prosecuted an application for Philippine patent, and having complied in all respects with the statute and the rules of the Philippine Patent Office, Patent No. 658 was lawfully granted and issued to him; that said invention was new, useful, not known or used by others in this country before his invention thereof, not patented or described in any printed publication anywhere before his invention thereof, or more than one year prior to his application for patent thereof, not patented in any foreign country by him or his legal representatives on application filed more than one year prior to his application in this country; that plaintiff has the exclusive license to make, use and sell throughout the Philippines the improvements set forth in said Patent No. 658; that the invention patented by said Patent No. 658 is of great utility and of great value to plaintiff and of great benefit to the public who has demanded and purchased tiles embodying the said invention in very large quantities and in very rapidly increasing quant ies; that he has complied with the Philippine statues relating to marking patented tiles sold by him; that the public has in general acknowledged the validity of said Patent No. 658, and has respected plaintiff's right therein and thereunder; that the defendant Domiciano A. Aguas infringed Letters of Patent No. 658 by making, using and selling tiles embodying said patent invention and that defendant F. H. Aquino & Sons is guilty of infringement by making and furnishing to the defendant Domiciano A. Aguas the engravings, castings and devices designed and intended of tiles embodying plaintiff;s patented invention; that he has given direct and personal notice to the defendants of their said acts of infringement and requested them to desist, but nevertheless, defendants have refused and neglected to desist and have disregarded such request, and continue to so infringe causing great and irreparable damage to plaintiff; that if the aforesaid infringement is permitted to continue, further losses and damages and irreparable injury will be

sustained by the plaintiff; that there is an urgent need for the immediate issuance of a preliminary injunction; that as a result of the defendants' wrongful conduct, plaintiff has suffered and the defendants are liable to pay him, in addition to actual damages and loss of profits which would be determined upon proper accounting, moral and exemplary or corrective damages in the sum of P90,000.00; that plaintiff has been compelled to go to court for the protection and enforcement of his and to engage the service of counsel, thereby incurring attorney's fees and expenses of litigation in the sum of P5,000.00. 2On April 14, 1962, an order granting the plaintiff's petition for a Writ of Preliminary Injunction was issued. 3On May 23, 1962, the defendant Domiciano A. Aguas filed his answer denying the allegations of the plaintiff and alleging that: the plaintiff is neither the original first nor sole inventor of the improvements in the process of making mosaic pre-cast tiles, the same having been used by several tile-making factories in the Philippines and abroad years before the alleged invention by de Leon; that Letters Patent No. 658 was unlawfully acquired by making it appear in the application in relation thereto that the process is new and that the plaintiff is the owner of the process when in truth and in fact the process incorporated in the patent application has been known and used in the Philippines by almost all tile makers long before the alleged use and registration of patent by plaintiff Conrado G. de Leon; that the registration of the alleged invention did not confer any right on the plaintiff because the registration was unlawfully secured and was a result of the gross misrepresentation on the part of the plaintiff that his alleged invention is a new and inventive process; that the allegation of the plaintiff that Patent No. 658 is of great value to plaintiff and of great benefit to the public is a mere conclusion of the plaintiff, the truth being that a) the invention of plaintiff is neither inventive nor new, hence, it is not patentable, b) defendant has been granted valid patents (Patents No. 108, 109, 110 issued on December 21, 1961) on designs for concrete decorative wall tiles; and c) that he can not be guilty of infringement because his products are different from those of the plaintiff. 4The trial court rendered a decision dated December 29, 1965, the dispositive portion of which reads:WHEREFORE, judgment is hereby rendered in favor of plaintiff and against the defendants:1. Declaring plaintiff's patent valid and infringed:2. Granting a perpetual injunction restraining defendants, their officers, agents, employees, associates, confederates, and any and all persons acting under their authority from making and/or using and/or vending tiles embodying said patented invention or adapted to be used in combination embodying the same, and from making, manufacturing, using or selling, engravings, castings and devises designed and intended for use in apparatus for the making of tiles embodying plaintiff's patented invention,

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and from offering or advertising so to do, and from aiding and abetting or in any way contributing to the infringement of said patent;3. Ordering that each and all of the infringing tiles, engravings, castings and devices, which are in the possession or under the control of defendants be delivered to plaintiff;4. Ordering the defendants to jointly and severally pay to the plaintiff the following sums of money, to wit:(a) P10,020.99 by way of actual damages;(b) P50,000.00 by way of moral damages;(c) P5,000.00 by way of exemplary damages;(d) P5,000.00 by way of attorney's fees and(e) costs of suit. 5The defendant Domiciano Aguas appealed to the Court of Appeals, assigning the following errors. 6ITHE TRIAL COURT ERRED IN NOT HOLDING THAT PLAINTIFF'S PATENT FOR THE 'PROCESS OF MAKING MOSAIC PRE-CAST TILE' IS INVALID BECAUSE SAID ALLEGED PROCESS IS NOT AN INVENTION OR DISCOVERY AS THE SAME HAS ALREADY LONG BEEN USED BY TILE MANUFACTURERS BOTH ABROAD AND IN THIS COUNTRY.IITHE TRIAL COURT ERRED IN HOLDING THAT THE PATENT OF PLAINTIFF IS VALID BECAUSE IT IS AN IMPROVEMENT OR THE AGE-OLD TILE MAKING SYSTEM.IIITHE TRIAL COURT ERRED IN NOT ORDERING THE CANCELLATION OF PLAINTIFF-APPELLEE'S LETTERS PATENT NO. 658, EXHIBIT L, IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF THE PATENT LAW, REPUBLIC ACT 165.IVTHE TRIAL COURT ERRED IN HOLDING THAT DEFENDANT DOMICIANO A. AGUAS IS GUILTY OF INFRINGEMENT DESPITE THE FACT THAT PLAINTIFF'S PATENT IS NOT A VALID ONE.VTHE TRIAL COURT ERRED IN NOT HOLDING THAT THE DEFENDANT COULD NEVER BE GUILTY OF INFRINGEMENT OF PLAINTIFF'S PATENT BECAUSE EVEN IN MATTERS NOT PATENTED BY THE PLAINTIFF - LIKE THE COMPOSITION AND PROPORTION OF INGREDIENTS USED AND THE STRUCTURAL DESIGNS OF THE MOULD AND THE TILE PRODUCED - THAT OF THE DEFENDANT ARE DIFFERENT.VITHE TRIAL COURT ERRED IN NOT DISMISSING THE COMPLAINT AND IN HOLDING THE DEFENDANT, INSTEAD OF THE PLAINTIFF, LIABLE FOR DAMAGES, AND ATTORNEY'S FEES.

On August 5, 1969, the Court of Appeals affirmed the decision of the trial court, with the modification that plaintiff-appellee's award of moral damages was reduced to P3,000.00. 7The petitioner assigns the following errors supposedly committed by the Court of Appeals:It is now respectfully submitted that the Court of Appeals committed the following errors involving questions of law, to wit:First error. — When it did not conclude that the letters patent of the respondent although entitled on the cover page as a patent for improvements, was in truth and in fact, on the basis of the body of the same, a patent for the old and non-patentable process of making mosaic pre-cast tiles;Second error. — When it did not conclude from the admitted facts of the case, particularly the contents of the letters patent, Exh. L and the pieces of physical evidence introduced consisting of samples of the tiles and catalouges, that the alleged improvements introduced by the respondent in the manufacture of mosaic pre-cast tiles are not patentable, the same being not new, useful and inventive.Third error. — As a corollary, when it sentenced the herein petitioner to pay the damages enumerated in the decision of the lower court (Record on Appeal, pp. 74-75), as confirmed by it (the Court of Appeals), but with the modification that the amount of P50,000.00 moral damages was reduced to P3,000.00. 8The facts, as found by the Court of Appeals, are:The basic facts borne out by the record are to the effect that on December 1, 1959 plaintiff-appellee filed a patent application with the Philippine Patent Office, and on May 5, 1960, said office issued in his favor Letters Patent No. 658 for a "new and useful improvement in the process of making mosaic pre-cast tiles" (Exh, "L"); that defendant F.H. Aquino & Sons engraved the moulds embodying plaintiff's patented improvement for the manufacture of pre-cast tiles, plaintiff furnishing said defendant the actual model of the tiles in escayola and explained to said engraver the plans, specifications and the details of the engravings as he wanted them to be made, including an explanation of the lip width, artistic slope of easement and critical depth of the engraving that plaintiff wanted for his moulds; that engraver Enrique Aquino knew that the moulds he was engraving for plaintiff were the latter's very own, which possession the new features and characteristics covered by plaintiff's parent; that defendant Aguas personally, as a building contractor, purchased from plaintiff, tiles shaped out of these moulds at the back of which was imprinted plaintiff's patent number (Exhs., "A" to "E"); that subsequently, through a representative, Mr. Leonardo, defendant Aguas requested Aquino to make engravings of the same type and bearing the characteristics of plaintiff's moulds; that Mr. Aquino knew that the moulds he was asked to engrave for defendant Aguas would be used to produce cement tiles similar to plaintiff's; that the moulds which F.H. Aquino & Sons

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eventually engraved for Aguas and for which it charged Aguas double the rate it charged plaintiff De Leon, contain the very same characteristic features of plaintiff's mould and that Aguas used these moulds in the manufacture of his tiles which he actually put out for sale to the public (Exhs. "1" to "3" and Exhs. "A" to "E"); that both plaintiff's and defendant Aguas' tiles are sculptured pre-cast wall tiles intended as a new feature of construction and wag ornamentation substantially Identical to each other in size, easement, lip width and critical depth of the deepest depression; and that the only significant difference between plaintiff's mould and that engraved by Aquino for Aguas is that, whereas plaintiff's mould turns out tiles 4 x 4 inches in size, defendant Aguas' mould is made to fit a 4-1/4 x 4-1/4 inch tile. 9The patent right of the private respondent expired on May 5, 1977. 10 The errors will be discuss only to determine the right of said private respondent to damages.The petitioner questioned the validity of the patent of the private respondent, Conrado G. de Leon, on the ground that the process, subject of said patent, is not an invention or discovery, or an improvement of the old system of making tiles. It should be noted that the private respondent does not claim to be the discoverer or inventor of the old process of tile-making. He only claims to have introduced an improvement of said process. In fact, Letters Patent No. 658 was issued by the Philippine Patent Office to the private respondent, Conrado G. de Leon, to protect his rights as the inventor of "an alleged new and useful improvement in the process of making mosaic pre-cast tiles." 11 Indeed, Section 7, Republic Act No. 165, as amended provides: "Any invention of a new and useful machine, manufactured product or substance, process, or an improvement of the foregoing, shall be patentable.The Court of Appeals found that the private respondent has introduced an improvement in the process of tile-making because:... we find that plaintiff-appellee has introduced an improvement in the process of tile-making, which proceeds not merely from mechanical skill, said improvement consisting among other things, in the new critical depth, lip width, easement and field of designs of the new tiles. The improved lip width of appellee's tiles ensures the durability of the finished product preventing the flaking off of the edges. The easement caused by the inclination of the protrusions of the patented moulds is for the purpose of facilitating the removal of the newly processed tile from the female die. Evidently, appellee's improvement consists in the solution to the old critical problem by making the protrusions on his moulds attain an optimum height, so that the engraving thereon would be deep enough to produce tiles for sculptured and decorative purposes, strong optimum thickness of appellee's new tiles of only 1/8 of an inch at the deepest easement (Exhs. "D" and "D-1") is a most critical feature, suggestive of discovery and inventiveness,

especially considering that, despite said thinness, the freshly formed tile remains strong enough for its intended purpose.While it is true that the matter of easement, lip width, depth, protrusions and depressions are known to some sculptors, still, to be able to produce a new and useful wall tile, by using them all together, amounts to an invention. More so, if the totality of all these features are viewed in combination with the Ideal composition of cement, sodium silicate and screened fine sand.By using his improved process, plaintiff has succeeded in producing a new product - a concrete sculptured tile which could be utilized for walling and decorative purposes. No proof was adduced to show that any tile of the same kind had been produced by others before appellee. Moreover, it appears that appellee has been deriving considerable profit from his manufacture and sale of such tiles. This commercial success is evidence of patentability (Walker on Patents, Dellers Edition, Vol. I, p. 237). 12The validily of the patent issued by the Philippines Patent Office in favor of the private respondent and the question over the inventiveness, novelty and usefulness of the improved process therein specified and described are matters which are better determined by the Philippines Patent Office. The technical staff of the Philippines Patent Office, composed of experts in their field, have, by the issuance of the patent in question, accepted the thinness of the private respondent's new tiles as a discovery. There is a presumption that the Philippines Patent Office has correctly determined the patentability of the improvement by the private respondent of the process in question.Anent this matter, the Court of Appeals said:Appellant has not adduced evidence sufficient to overcome the above established legal presumption of validity or to warrant reversal of the findings of the lower court relative to the validity of the patent in question. In fact, as we have already pointed out, the clear preponderance of evidence bolsters said presumption of validity of appellee's patent. There is no indication in the records of this case and this Court is unaware of any fact, which would tend to show that concrete wall tiles similar to those produced by appellee had ever been made by others before he started manufacturing the same. In fact, during the trial, appellant was challenged by appellee to present a tile of the same kind as those produced by the latter, from any earlier source but, despite the fact that appellant had every chance to do so, he could not present any. There is, therefore, no concrete proof that the improved process of tile-making described in appellee's patent was used by, or known to, others previous to his discovery thereof. 13The contention of the petitioner Aguas that the letters patent of de Leon was actually a patent for the old and non-patentable process of making mosaic pre-cast tiles is devoid of merit. De Leon never claimed to have invented the process of tile-making. The Claims and Specifications of Patent No. 658 show that although some of the steps or parts of the old process of tile making were described therein, there were novel and inventive features mentioned in the process. Some of the novel features of the private

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respondent's improvements are the following: critical depth, with corresponding easement and lip width to such degree as leaves the tile as thin as 1/8 of an inch at its thinnest portion, Ideal composition of cement and fine river sand, among other ingredients that makes possible the production of tough and durable wall tiles, though thin and light; the engraving of deep designs in such a way as to make the tiles decorative, artistic and suitable for wall ornamentation, and the fact that the tiles can be mass produced in commercial quantities and can be conveniently stock-piled, handled and packed without any intolerable incidence of breakages. 14The petitioner also contends that the improvement of respondent is not patentable because it is not new, useful and inventive. This contention is without merit.The records disclose that de Leon's process is an improvement of the old process of tile making. The tiles produced from de Leon's process are suitable for construction and ornamentation, which previously had not been achieved by tiles made out of the old process of tile making. De Leon's invention has therefore brought about a new and useful kind of tile. The old type of tiles were usually intended for floors although there is nothing to prevent one from using them for walling purposes. These tiles are neither artistic nor ornamental. They are heavy and massive.The respondent's improvement is indeed inventive and goes beyond the exercise of mechanical skill. He has introduced a new kind of tile for a new purpose. He has improved the old method of making tiles and pre-cast articles which were not satisfactory because of an intolerable number of breakages, especially if deep engravings are made on the tile. He has overcome the problem of producing decorative tiles with deep engraving, but with sufficient durability. 15 Durability inspite of the thinness and lightness of the tile, is assured, provided that a certain critical depth is maintained in relation to the dimensions of the tile. 16The petitioner also claims that changing the design from embossed to engraved tiles is neither new nor inventive because the Machuca Tile Factory and the Pomona Tile Manufacturing Company have been manufacturing decorative wall tiles that are embossed as well as engraved; 17 that these tiles have also depth, lip width, easement and field of designs; 18 and that the private respondent had copied some designs of Pomona. 19The Machuca tiles are different from that of the private respondent. The designs are embossed and not engraved as claimed by the petitioner. There may be depressions but these depressions are too shallow to be considered engraved. Besides, the Machuca tiles are heavy and massive.There is no similarity between the Pomona Tiles and de Leon's tiles. The Pomona tiles are made of ceramics. 20 The process involved in making cement tiles is different from ceramic tiles. Cement tiles are made with the use of water, while in ceramics fire is used. As regards the allegation of the petitioner that the private respondent copied some designs of Pomona,

suffice it to say that what is in issue here is the process involved in tile making and not the design.In view of the foregoing, this Court finds that Patent No. 658 was legally issued, the process and/or improvement being patentable.Both the trial court and the Court of Appeals found as a fact that the petitioner Domiciano A. Aguas did infringe de Leon's patent. There is no showing that this case falls under one of the exceptions when this Court may overrule the findings of fact of the Court of Appeals. The only issue then to be resolved is the amount of damages that should be paid by Aguas.In its decision the Court of Appeals affirmed the amount of damages awarded by the lower court with the modification that the respondent is only entitled to P3,000.00 moral damages. 21The lower court awarded the following damages: 22a) P10,020.99 by way of actual damages;b) P50,000.00 by way of moral damages;c) P5,000.00 by way of exemplary damages;d) P5,000.00 by way of attomey's fees ande) Costs of suitbecause:An examination of the books of defendant Aguas made before a Commissioner reveals that during the period that Aguas was manufacturing and selling tiles similar to plaintiff's, he made a gross income of P3,340.33, which can be safely be considered the amount by which he enriched himself when he infringed plaintiff's patent. Under Sec. 42 of the Patent Law any patentee whose rights have been infringed is entitled to damages which, according to the circumstances of the case may be in a sum above the amount found as actual damages sustained provided the award does not exceed three times the amount of such actual damages. Considering the wantonness of the infringement committed by the defendants who knew all the time about the existence of plaintiff's patent, the Court feels there is reason to grant plaintiff maximum damages in the sum of P10,020.99. And in order to discourage patent infringements and to give more teeth to the provisions of the patent law thus promoting a stronger public policy committed to afford greater incentives and protection to inventors, the Court hereby awards plaintiff exemplary damages in the sum of P5,000.00 to be paid jointly and severally by defendants. Considering the status of plaintiff as a reputable businessman, and owner of the likewise reputed House of Pre-Cast, he is entitled to an award of moral damages in the sum of P50,000.00. 23In reducing the amount of moral damages the Court of Appeals said:As regards the question of moral damages it has been shown that as a result of the unlawful acts of infringment committed by defendants, plaintiff was unstandably very sad; he worried and became nervous and lost concentration on his work in connection with his tile business (pp. 28, 30, t.s.n., Feb. 28, 1964). In addition, plaintiff's character and reputation have

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been unnecessarily put in question because defendants, by their acts of infringement have created a doubt or suspicion in the public mind concerning the truth and honesty of plaintiff's advertisements and public announcements of his valid patent. Necessarily, said acts of defendants have caused plaintiff considerable mental suffering, considering especially, the fact that he staked everything on his pre-cast tile business (p. 36, t.s.n., Id.) The wantonness and evident bad faith characterizing defendants' prejudicial acts against plaintiff justify the assessment of moral damages in plaintiff's favor, though we do not believe the amount of P50,000.00 awarded by the lower court is warranted by the circumstances. We feel that said amount should be reduced to P3,000.00 by way of compensating appellee for his moral suffering. "Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances such damages are justly due" (Art. 2219 NCC).There is no reason to reduce the amount of damages and attorneys fees awarded by the trial court as modified by the Court of Appeals.WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 37824-R appealed from is hereby affirmed, without pronouncement as to costs.SO ORDERED.Makasiar, Guerrero, Melencio-Herrera and Plana, JJ., concur.Teehankee, J., took no part.

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[G. R. No. 126627. August 14, 2003]SMITH KLINE BECKMAN CORPORATION, Petitioner, vs. THE HONORABLE COURT OF APPEALS and TRYCO PHARMA CORPORATION, Respondents.D E C I S I O NCARPIO-MORALES, J.: chanroblesvirtuallawlibrarySmith Kline Beckman Corporation (petitioner), a corporation existing by virtue of the laws of the state of Pennsylvania, United States of America (U.S.) and licensed to do business in the Philippines, filed on October 8, 1976, as assignee, before the Philippine Patent Office (now Bureau of Patents, Trademarks and Technology Transfer) an application for patent over an invention entitled Methods and Compositions for Producing Biphasic Parasiticide Activity Using Methyl 5 Propylthio-2-Benzimidazole Carbamate. The application bore Serial No. 18989.chanroblesvirtuallawlibraryOn September 24, 1981, Letters Patent No. 14561[1] for the aforesaid invention was issued to petitioner for a term of seventeen (17) years.chanroblesvirtuallawlibraryThe letters patent provides in its claims[2] that the patented invention consisted of a new compound named methyl 5 propylthio-2-benzimidazole carbamate and the methods or compositions utilizing the compound as an active ingredient in fighting infections caused by gastrointestinal parasites and lungworms in animals such as swine, sheep, cattle, goats, horses, and even pet animals.chanroblesvirtuallawlibraryTryco Pharma Corporation (private respondent) is a domestic corporation that manufactures, distributes and sells veterinary products including Impregon, a drug that has Albendazole for its active ingredient and is claimed to be effective against gastro-intestinal roundworms, lungworms, tapeworms and fluke infestation in carabaos, cattle and goats.chanroblesvirtuallawlibraryPetitioner sued private respondent for infringement of patent and unfair competition before the Caloocan City Regional Trial Court (RTC).[3] It claimed that its patent covers or includes the substance Albendazole such that private respondent, by manufacturing, selling, using, and causing to be sold and used the drug Impregon without its authorization, infringed Claims 2, 3, 4, 7, 8 and 9 of Letters Patent No. 14561[4] as well as committed unfair competition under Article 189, paragraph 1 of the Revised Penal Code and Section 29 of Republic Act No. 166 (The Trademark Law) for advertising and selling as its own the drug Impregon although the same contained petitioners patented Albendazole.[5]chanroblesvirtuallawlibraryOn motion of petitioner, Branch 125 of the Caloocan RTC issued a temporary restraining order against private respondent enjoining it from committing acts of patent infringement and unfair competition.[6] A writ of preliminary injunction was subsequently issued.[7]chanroblesvirtuallawlibraryPrivate respondent in its Answer[8] averred that Letters Patent No. 14561 does not cover the substance Albendazole for nowhere in it does that word

appear; that even if the patent were to include Albendazole, such substance is unpatentable; that the Bureau of Food and Drugs allowed it to manufacture and market Impregon with Albendazole as its known ingredient; that there is no proof that it passed off in any way its veterinary products as those of petitioner; that Letters Patent No. 14561 is null and void, the application for the issuance thereof having been filed beyond the one year period from the filing of an application abroad for the same invention covered thereby, in violation of Section 15 of Republic Act No. 165 (The Patent Law); and that petitioner is not the registered patent holder.chanroblesvirtuallawlibraryPrivate respondent lodged a Counterclaim against petitioner for such amount of actual damages as may be proven; P1,000,000.00 in moral damages; P300,000.00 in exemplary damages; and P150,000.00 in attorneys fees.chanroblesvirtuallawlibraryFinding for private respondent, the trial court rendered a Decision dated July 23, 1991,[9] the dispositive portion of which reads:chanroblesvirtuallawlibraryWHEREFORE, in view of the foregoing, plaintiffs complaint should be, as it is hereby, DISMISSED. The Writ of injunction issued in connection with the case is hereby ordered DISSOLVED.chanroblesvirtuallawlibraryThe Letters Patent No. 14561 issued by the then Philippine Patents Office is hereby declared null and void for being in violation of Sections 7, 9 and 15 of the Patents Law.chanroblesvirtuallawlibraryPursuant to Sec. 46 of the Patents Law, the Director of Bureau of Patents is hereby directed to cancel Letters Patent No. 14561 issued to the plaintiff and to publish such cancellation in the Official Gazette.chanroblesvirtuallawlibraryDefendant Tryco Pharmaceutical Corporation is hereby awarded P330,000.00 actual damages and P100,000.00 attorneys fees as prayed for in its counterclaim but said amount awarded to defendant is subject to the lien on correct payment of filing fees.chanroblesvirtuallawlibrarySO ORDERED. (Underscoring supplied)chanroblesvirtuallawlibraryOn appeal, the Court of Appeals, by Decision of April 21, 1995,[10] upheld the trial courts finding that private respondent was not liable for any infringement of the patent of petitioner in light of the latters failure to show that Albendazole is the same as the compound subject of Letters Patent No. 14561. Noting petitioners admission of the issuance by the U.S. of a patent for Albendazole in the name of Smith Kline and French Laboratories which was petitioners former corporate name, the appellate court considered the U.S. patent as implying that Albendazole is different from methyl 5 propylthio-2-benzimidazole carbamate. It likewise found that private respondent was not guilty of deceiving the public by misrepresenting that Impregon is its product.chanroblesvirtuallawlibraryThe appellate court, however, declared that Letters Patent No. 14561 was not void as it sustained petitioners explanation that Patent Application Serial

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No. 18989 which was filed on October 8, 1976 was a divisional application of Patent Application Serial No. 17280 filed on June 17, 1975 with the Philippine Patent Office, well within one year from petitioners filing on June 19, 1974 of its Foreign Application Priority Data No. 480,646 in the U.S. covering the same compound subject of Patent Application Serial No. 17280.chanroblesvirtuallawlibraryApplying Section 17 of the Patent Law, the Court of Appeals thus ruled that Patent Application Serial No. 18989 was deemed filed on June 17, 1995 or still within one year from the filing of a patent application abroad in compliance with the one-year rule under Section 15 of the Patent Law. And it rejected the submission that the compound in Letters Patent No. 14561 was not patentable, citing the jurisprudentially established presumption that the Patent Offices determination of patentability is correct. Finally, it ruled that petitioner established itself to be the one and the same assignee of the patent notwithstanding changes in its corporate name. Thus the appellate court disposed:chanroblesvirtuallawlibraryWHEREFORE, the judgment appealed from is AFFIRMED with the MODIFICATION that the orders for the nullification of Letters Patent No. 14561 and for its cancellation are deleted therefrom.chanroblesvirtuallawlibrarySO ORDERED.chanroblesvirtuallawlibraryPetitioners motion for reconsideration of the Court of Appeals decision having been denied[11] the present petition for review on certiorari[12] was filed, assigning as errors the following:chanroblesvirtuallawlibraryI. THE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THAT ALBENDAZOLE, THE ACTIVE INGREDIENT IN TRYCOS IMPREGON DRUG, IS INCLUDED IN PETITIONERS LETTERS PATENT NO. 14561, AND THAT CONSEQUENTLY TRYCO IS ANSWERABLE FOR PATENT INFRINGEMENT.chanroblesvirtuallawlibraryII. THE COURT OF APPEALS GRAVELY ERRED IN AWARDING TO PRIVATE RESPONDENT TRYCO PHARMA CORPORATION P330,000.00 ACTUAL DAMAGES AND P100,000.00 ATTORNEYS FEES.chanroblesvirtuallawlibraryPetitioner argues that under the doctrine of equivalents for determining patent infringement, Albendazole, the active ingredient it alleges was appropriated by private respondent for its drug Impregon, is substantially the same as methyl 5 propylthio-2-benzimidazole carbamate covered by its patent since both of them are meant to combat worm or parasite infestation in animals. It cites the unrebutted testimony of its witness Dr. Godofredo C. Orinion (Dr. Orinion) that the chemical formula in Letters Patent No. 14561 refers to the compound Albendazole. Petitioner adds that the two substances substantially do the same function in substantially the same way to achieve the same results, thereby making them truly identical. Petitioner thus submits that the appellate court should have gone beyond the literal wordings used in Letters Patent No. 14561, beyond merely applying the

literal infringement test, for in spite of the fact that the word Albendazole does not appear in petitioners letters patent, it has ably shown by evidence its sameness with methyl 5 propylthio-2-benzimidazole carbamate.chanroblesvirtuallawlibraryPetitioner likewise points out that its application with the Philippine Patent Office on account of which it was granted Letters Patent No. 14561 was merely a divisional application of a prior application in the U. S. which granted a patent for Albendazole. Hence, petitioner concludes that both methyl 5 propylthio-2-benzimidazole carbamate and the U.S.-patented Albendazole are dependent on each other and mutually contribute to produce a single result, thereby making Albendazole as much a part of Letters Patent No. 14561 as the other substance is.chanroblesvirtuallawlibraryPetitioner concedes in its Sur-Rejoinder[13] that although methyl 5 propylthio-2-benzimidazole carbamate is not identical with Albendazole, the former is an improvement or improved version of the latter thereby making both substances still substantially the same.chanroblesvirtuallawlibraryWith respect to the award of actual damages in favor of private respondent in the amount of P330,000.00 representing lost profits, petitioner assails the same as highly speculative and conjectural, hence, without basis. It assails too the award of P100,000.00 in attorneys fees as not falling under any of the instances enumerated by law where recovery of attorneys fees is allowed.chanroblesvirtuallawlibraryIn its Comment,[14] private respondent contends that application of the doctrine of equivalents would not alter the outcome of the case, Albendazole and methyl 5 propylthio-2-benzimidazole carbamate being two different compounds with different chemical and physical properties. It stresses that the existence of a separate U.S. patent for Albendazole indicates that the same and the compound in Letters Patent No. 14561 are different from each other; and that since it was on account of a divisional application that the patent for methyl 5 propylthio-2-benzimidazole carbamate was issued, then, by definition of a divisional application, such a compound is just one of several independent inventions alongside Albendazole under petitioners original patent application.chanroblesvirtuallawlibraryAs has repeatedly been held, only questions of law may be raised in a petition for review on certiorari before this Court. Unless the factual findings of the appellate court are mistaken, absurd, speculative, conjectural, conflicting, tainted with grave abuse of discretion, or contrary to the findings culled by the court of origin,[15] this Court does not review them.chanroblesvirtuallawlibraryFrom an examination of the evidence on record, this Court finds nothing infirm in the appellate courts conclusions with respect to the principal issue of whether private respondent committed patent infringement to the prejudice of petitioner.chanroblesvirtuallawlibrary

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The burden of proof to substantiate a charge for patent infringement rests on the plaintiff.[16] In the case at bar, petitioners evidence consists primarily of its Letters Patent No. 14561, and the testimony of Dr. Orinion, its general manager in the Philippines for its Animal Health Products Division, by which it sought to show that its patent for the compound methyl 5 propylthio-2-benzimidazole carbamate also covers the substance Albendazole.chanroblesvirtuallawlibraryFrom a reading of the 9 claims of Letters Patent No. 14561 in relation to the other portions thereof, no mention is made of the compound Albendazole. All that the claims disclose are: the covered invention, that is, the compound methyl 5 propylthio-2-benzimidazole carbamate; the compounds being anthelmintic but nontoxic for animals or its ability to destroy parasites without harming the host animals; and the patented methods, compositions or preparations involving the compound to maximize its efficacy against certain kinds of parasites infecting specified animals.chanroblesvirtuallawlibraryWhen the language of its claims is clear and distinct, the patentee is bound thereby and may not claim anything beyond them.[17] And so are the courts bound which may not add to or detract from the claims matters not expressed or necessarily implied, nor may they enlarge the patent beyond the scope of that which the inventor claimed and the patent office allowed, even if the patentee may have been entitled to something more than the words it had chosen would include.[18]chanroblesvirtuallawlibraryIt bears stressing that the mere absence of the word Albendazole in Letters Patent No. 14561 is not determinative of Albendazoles non-inclusion in the claims of the patent. While Albendazole is admittedly a chemical compound that exists by a name different from that covered in petitioners letters patent, the language of Letter Patent No. 14561 fails to yield anything at all regarding Albendazole. And no extrinsic evidence had been adduced to prove that Albendazole inheres in petitioners patent in spite of its omission therefrom or that the meaning of the claims of the patent embraces the same.chanroblesvirtuallawlibraryWhile petitioner concedes that the mere literal wordings of its patent cannot establish private respondents infringement, it urges this Court to apply the doctrine of equivalents.chanroblesvirtuallawlibraryThe doctrine of equivalents provides that an infringement also takes place when a device appropriates a prior invention by incorporating its innovative concept and, although with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result.[19] Yet again, a scrutiny of petitioners evidence fails to convince this Court of the substantial sameness of petitioners patented compound and Albendazole. While both compounds have the effect of neutralizing parasites in animals, identity of result does not amount to infringement of patent unless Albendazole operates in substantially the same way or by substantially the same means as the patented compound, even though it performs the same function and

achieves the same result.[20] In other words, the principle or mode of operation must be the same or substantially the same.[21]chanroblesvirtuallawlibraryThe doctrine of equivalents thus requires satisfaction of the function-means-and-result test, the patentee having the burden to show that all three components of such equivalency test are met.[22]chanroblesvirtuallawlibraryAs stated early on, petitioners evidence fails to explain how Albendazole is in every essential detail identical to methyl 5 propylthio-2-benzimidazole carbamate. Apart from the fact that Albendazole is an anthelmintic agent like methyl 5 propylthio-2-benzimidazole carbamate, nothing more is asserted and accordingly substantiated regarding the method or means by which Albendazole weeds out parasites in animals, thus giving no information on whether that method is substantially the same as the manner by which petitioners compound works. The testimony of Dr. Orinion lends no support to petitioners cause, he not having been presented or qualified as an expert witness who has the knowledge or expertise on the matter of chemical compounds.chanroblesvirtuallawlibraryAs for the concept of divisional applications proffered by petitioner, it comes into play when two or more inventions are claimed in a single application but are of such a nature that a single patent may not be issued for them.[23] The applicant thus is required to divide, that is, to limit the claims to whichever invention he may elect, whereas those inventions not elected may be made the subject of separate applications which are called divisional applications.[24] What this only means is that petitioners methyl 5 propylthio-2-benzimidazole carbamate is an invention distinct from the other inventions claimed in the original application divided out, Albendazole being one of those other inventions. Otherwise, methyl 5 propylthio-2-benzimidazole carbamate would not have been the subject of a divisional application if a single patent could have been issued for it as well as Albendazole.chanroblesvirtuallawlibraryThe foregoing discussions notwithstanding, this Court does not sustain the award of actual damages and attorneys fees in favor of private respondent. The claimed actual damages of P330,000.00 representing lost profits or revenues incurred by private respondent as a result of the issuance of the injunction against it, computed at the rate of 30% of its alleged P100,000.00 monthly gross sales for eleven months, were supported by the testimonies of private respondents President[25] and Executive Vice-President that the average monthly sale of Impregon was P100,000.00 and that sales plummeted to zero after the issuance of the injunction.[26] While indemnification for actual or compensatory damages covers not only the loss suffered (damnum emergens) but also profits which the obligee failed to obtain (lucrum cessans or ganacias frustradas), it is necessary to prove the actual amount of damages with a reasonable degree of certainty based on competent proof and on the best evidence obtainable by the injured party.[27] The testimonies of private respondents officers are not the competent

8

proof or best evidence obtainable to establish its right to actual or compensatory damages for such damages also require presentation of documentary evidence to substantiate a claim therefor.[28]chanroblesvirtuallawlibraryIn the same vein, this Court does not sustain the grant by the appellate court of attorneys fees to private respondent anchored on Article 2208 (2) of the Civil Code, private respondent having been allegedly forced to litigate as a result of petitioners suit. Even if a claimant is compelled to litigate with third persons or to incur expenses to protect its rights, still attorneys fees may not be awarded where no sufficient showing of bad faith could be reflected in a partys persistence in a case other than an erroneous conviction of the righteousness of his cause.[29] There exists no evidence on record indicating that petitioner was moved by malice in suing private respondent.chanroblesvirtuallawlibraryThis Court, however, grants private respondent temperate or moderate damages in the amount of P20,000.00 which it finds reasonable under the circumstances, it having suffered some pecuniary loss the amount of which cannot, from the nature of the case, be established with certainty.[30]chanroblesvirtuallawlibraryWHEREFORE, the assailed decision of the Court of Appeals is hereby AFFIRMED with MODIFICATION. The award of actual or compensatory damages and attorneys fees to private respondent, Tryco Pharma Corporation, is DELETED; instead, it is hereby awarded the amount of P20,000.00 as temperate or moderate damages.chanroblesvirtuallawlibrarySO ORDERED.chanroblesvirtuallawlibraryPuno, (Chairman), Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.

9

G.R. No. 97343 September 13, 1993PASCUAL GODINES, petitioner, vs.THE HONORABLE COURT OF APPEALS, SPECIAL FOURTH DIVISION and SV-AGRO ENTERPRISES, INC., respondents.Jesus S. Anonat for petitioner.Arturo M. Alinio for private respondent.ROMERO, J.:Through this petition for review in certiorari of a decision of the Court of Appeals affirming the decision of the trial court, petitioner Pascual Godines seeks to reverse the adverse decision of the Court a quo that he was liable for infringement of patent and unfair competition. The dispositive portion of the assailed decision is hereby quoted to wit:WHEREFORE, with the elimination of the award for attorney's fees, the judgment appealed from is hereby AFFIRMED, with costs against appellant. 1The patent involved in this case is Letters Patent No. UM-2236 issued by the Philippine Patent Office to one Magdalena S. Villaruz on July 15, 1976. It covers a utility model for a hand tractor or power tiller, the main components of which are the following: "(1) a vacuumatic house float; (2) a harrow with adjustable operating handle; (3) a pair of paddy wheels; (4) a protective water covering for the engine main drive; (5) a transmission case; (6) an operating handle; (7) an engine foundation on the top midportion of the vacuumatic housing float to which the main engine drive is detachedly installed; (8) a frontal frame extension above the quarter — circularly shaped water covering hold (sic) in place the transmission case; (9) a V-belt connection to the engine main drive with transmission gear through the pulley, and (10) an idler pulley installed on the engine foundation." 2 The patented hand tractor works in the following manner: "the engine drives the transmission gear thru the V-belt, a driven pulley and a transmission shaft. The engine drives the transmission gear by tensioning of the V-belt which is controlled by the idler pulley. The V-belt drives the pulley attached to the transmission gear which in turn drives the shaft where the paddy wheels are attached. The operator handles the hand tractor through a handle which is inclined upwardly and supported by a pair of substanding pipes and reinforced by a U-shaped G.I. pipe at the V-shaped end." 3The above mentioned patent was acquired by SV-Agro Industries Enterprises, Inc., herein private respondent, from Magdalena Villaruz, its chairman and president, by virtue of a Deed of Assignment executed by the latter in its favor. On October 31, 1979, SV-Agro Industries caused the publication of the patent in Bulletin Today, a newspaper of general circulation.In accordance with the patent, private respondent manufactured and sold the patented power tillers with the patent imprinted on them. In 1979, SV-Agro Industries suffered a decline of more than 50% in sales in its Molave, Zamboanga del Sur branch. Upon investigation, it discovered that power

tillers similar to those patented by private respondent were being manufactured and sold by petitioner herein. Consequently, private respondent notified Pascual Godines about the existing patent and demanded that the latter stop selling and manufacturing similar power tillers. Upon petitioner's failure to comply with the demand, SV-Agro Industries filed before the Regional Trial Court a complaint for infringement of patent and unfair competition.After trial, the court held Pascual Godines liable for infringement of patent and unfair competition. The dispositive portion of the decision reads as follows:WHEREFORE, premises considered, JUDGMENT is hereby rendered in favor of the plaintiff SV-Agro Industries Enterprises, Inc., and against defendant Pascual Godines:1. Declaring the writ of preliminary injunction issued by this Court against defendant as permanent;2. Ordering defendant Pascual Godines to pay plaintiff the sum of Fifty Thousand Pesos (P50,000.00) as damages to its business reputation and goodwill, plus the further sum of Eighty Thousand Pesos (P80,000.00) for unrealized profits during the period defendant was manufacturing and selling copied or imitation floating power tiller;3. Ordering the defendant to pay the plaintiff, the further sum of Eight Thousand Pesos (P8,000.00) as reimbursement of attorney's fees and other expenses of litigation; and to pay the costs of the suit.SO ORDERED. 4The decision was affirmed by the appellate court.Thereafter, this petition was filed. Petitioner maintains the defenses which he raised before the trial and appellate courts, to wit: that he was not engaged in the manufacture and sale of the power tillers as he made them only upon the special order of his customers who gave their own specifications; hence, he could not be liable for infringement of patent and unfair competition; and that those made by him were different from those being manufactured and sold by private respondent.We find no merit in his arguments. The question of whether petitioner was manufacturing and selling power tillers is a question of fact better addressed to the lower courts. In dismissing the first argument of petitioner herein, the Court of Appeals quoted the findings of the court, to wit:It is the contention of defendant that he did not manufacture or make imitations or copies of plaintiff's turtle power tiller as what he merely did was to fabricate his floating power tiller upon specifications and designs of those who ordered them. However, this contention appears untenable in the light of the following circumstances: 1) he admits in his Answer that he has been manufacturing power tillers or hand tractors, selling and distributing them long before plaintiff started selling its turtle power tiller in Zamboanga del Sur and Misamis Occidental, meaning that defendant is principally a manufacturer of power tillers, not upon specification and design of buyers,

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but upon his own specification and design; 2) it would be unbelievable that defendant would fabricate power tillers similar to the turtle power tillers of plaintiff upon specifications of buyers without requiring a job order where the specification and designs of those ordered are specified. No document was (sic) ever been presented showing such job orders, and it is rather unusual for defendant to manufacture something without the specification and designs, considering that he is an engineer by profession and proprietor of the Ozamis Engineering shop. On the other hand, it is also highly unusual for buyers to order the fabrication of a power tiller or hand tractor and allow defendant to manufacture them merely based on their verbal instructions. This is contrary to the usual business and manufacturing practice. This is not only time consuming, but costly because it involves a trial and error method, repeat jobs and material wastage. Defendant judicially admitted two (2) units of the turtle power tiller sold by him to Policarpio Berondo. 5Of general acceptance is the rule imbedded in our jurisprudence that ". . . the jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals in a petition for certiorari under Rule 45 of the Rules of Court is limited to the review of errors of law, and that said appellate court's findings of fact are conclusive upon this Court." 6The fact that petitioner herein manufactured and sold power tillers without patentee's authority has been established by the courts despite petitioner's claims to the contrary.The question now arises: Did petitioner's product infringe upon the patent of private respondent?Tests have been established to determine infringement. These are (a) literal infringement; and (b) the doctrine of equivalents. 7 In using literal infringement as a test, ". . . resort must be had, in the first instance, to the words of the claim. If accused matter clearly falls within the claim, infringement is made out and that is the end of it." 8 To determine whether the particular item falls within the literal meaning of the patent claims, the court must juxtapose the claims of the patent and the accused product within the overall context of the claims and specifications, to determine whether there is exact identity of all material elements. 9The trial court made the following observation:Samples of the defendant's floating power tiller have been produced and inspected by the court and compared with that of the turtle power tiller of the plaintiff (see Exhibits H to H-28). In appearance and form, both the floating power tillers of the defendant and the turtle power tiller of the plaintiff are virtually the same. Defendant admitted to the Court that two (2) of the power inspected on March 12, 1984, were manufactured and sold by him (see TSN, March 12, 1984, p. 7). The three power tillers were placed alongside with each other. At the center was the turtle power tiller of plaintiff, and on both sides thereof were the floating power tillers of defendant (Exhibits H to H-2). Witness Rodrigo took photographs of the same power tillers (front, side, top and back views for purposes of comparison (see Exhibits H-4 to H-

28). Viewed from any perspective or angle, the power tiller of the defendant is identical and similar to that of the turtle power tiller of plaintiff in form, configuration, design and appearance. The parts or components thereof are virtually the same. Both have the circularly-shaped vacuumatic housing float, a paddy in front, a protective water covering, a transmission box housing the transmission gears, a handle which is V-shaped and inclined upwardly, attached to the side of the vacuumatic housing float and supported by the upstanding G.I. pipes and an engine base at the top midportion of the vacuumatic housing float to which the engine drive may be attached. In operation, the floating power tiller of the defendant operates also in similar manner as the turtle power tiller of plaintiff. This was admitted by the defendant himself in court that they are operating on the same principles. (TSN, August 19, 1987, p. 13) 10Moreover, it is also observed that petitioner also called his power tiller as a floating power tiller. The patent issued by the Patent Office referred to a "farm implement but more particularly to a turtle hand tractor having a vacuumatic housing float on which the engine drive is held in place, the operating handle, the harrow housing with its operating handle and the paddy wheel protective covering." 11 It appears from the foregoing observation of the trial court that these claims of the patent and the features of the patented utility model were copied by petitioner. We are compelled to arrive at no other conclusion but that there was infringement.Petitioner's argument that his power tillers were different from private respondent's is that of a drowning man clutching at straws.Recognizing that the logical fallback position of one in the place of defendant is to aver that his product is different from the patented one, courts have adopted the doctrine of equivalents which recognizes that minor modifications in a patented invention are sufficient to put the item beyond the scope of literal infringement. 12 Thus, according to this doctrine, "(a)n infringement also occurs when a device appropriates a prior invention by incorporating its innovative concept and, albeit with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result." 13 The reason for the doctrine of equivalents is that to permit the imitation of a patented invention which does not copy any literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such imitation would leave room for — indeed encourage — the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of the law. 14In this case, the trial court observed:Defendant's witness Eduardo Cañete, employed for 11 years as welder of the Ozamis Engineering, and therefore actually involved in the making of the floating power tillers of defendant tried to explain the difference between the floating power tillers made by the defendant. But a careful examination

11

between the two power tillers will show that they will operate on the same fundamental principles. And, according to establish jurisprudence, in infringement of patent, similarities or differences are to be determined, not by the names of things, but in the light of what elements do, and substantial, rather than technical, identity in the test. More specifically, it is necessary and sufficient to constitute equivalency that the same function can be performed in substantially the same way or manner, or by the same or substantially the same, principle or mode of operation; but where these tests are satisfied, mere differences of form or name are immaterial. . . . 15It also stated:To establish an infringement, it is not essential to show that the defendant adopted the device or process in every particular; Proof of an adoption of the substance of the thing will be sufficient. "In one sense," said Justice Brown, "it may be said that no device can be adjudged an infringement that does not substantially correspond with the patent. But another construction, which would limit these words to exact mechanism described in the patent, would be so obviously unjust that no court could be expected to adopt it. . . .The law will protect a patentee against imitation of his patent by other forms and proportions. If two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape. 16We pronounce petitioner liable for infringement in accordance with Section 37 of Republic Act No. 165, as amended, providing, inter alia:Sec. 37. Right of Patentees. — A patentee shall have the exclusive right to make, use and sell the patented machine, article or product, and to use the patented process for the purpose of industry or commerce, throughout the territory of the Philippines for the terms of the patent; and such making, using, or selling by any person without the authorization of the Patentee constitutes infringement of the patent. (Emphasis ours)As far as the issue regarding unfair competition is concerned, suffice it to say that Republic Act No. 166, as amended, provides, inter alia:Sec. 29. Unfair competition, rights and remedies. — . . .xxx xxx xxxIn particular, and without in any way limiting the scope of unfair competition, the following shall be deemed guilty of unfair competition:(a) Any person, who in selling his goods shall give them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade. . . .xxx xxx xxx

Considering the foregoing, we find no reversible error in the decision of the Court of Appeals affirming with modification the decision of the trial court.WHEREFORE, premises considered, the decision of the Court of Appeals is hereby AFFIRMED and this petition DENIED for lack of merit.Bidin, Melo and Vitug, JJ., concur.Feliciano, J., is on leave.

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G.R. No. 118708 February 2, 1998CRESER PRECISION SYSTEMS, INC., petitioner, vs.COURT OF APPEALS AND FLORO INTERNATIONAL CORP., respondents. MARTINEZ, J.:This petition for review on certiorari assails the decision 1 of the Court of Appeals dated November 9, 1994 in C.A.-G.R. SP No. 34425 entitled "Floro International Corp. vs. Hon. Tirso D.C Cruz and Creser Precision System, Inc.", the dispositive portion of which reads:WHEREFORE, THE PETITION IS HEREBY GRANTED. THE COMPLAINT FOR INJUNCTION AND DAMAGES, CIVIL CASE NO. 93-1856 BEFORE THE RESPONDENT JUDGE IS HEREBY ORDERED DISMISSED AND HIS ORDERS THEREIN OF DECEMBER 29, 1993 AND MAY 11, 1994 ARE ORDERED SET ASIDE.Private respondent is a domestic corporation engaged in the manufacture, production, distribution and sale of military armaments, munitions, airmunitions and other similar materials. 2On January 23, 1990, private respondent was granted by the Bureau of Patents, Trademarks and Technology Transfer (BPTTT), a Letters Patent No. UM-6938 3 covering an aerial fuze which was published in the September-October-1990, Vol. III, No. 5 issue of the Bureau of Patent's Official Gazette. 4Sometime in November 1993, private respondent, through its president, Mr. Gregory Floro, Jr., discovered that petitioner submitted samples of its patented aerial fuze to the Armed Forces of the Philippines (AFP) for testing. He learned that petitioner was claiming the aforesaid aerial fuze as its own and planning to bid and manufacture the same commercially without license or authority from private respondent. To protect its right, private respondent on December 3, 1993, sent a letter 5 to petitioner advising it of its existing patent and its rights thereunder, warning petitioner of a possible court action and/or application for injunction, should it proceed with the scheduled testing by the military on December 7, 1993.In response to private respondent's demand, petitioner filed on December 8, 1993 a complaint 6 for injunction and damages arising from the alleged infringement before the Regional Trial Court of Quezon City, Branch 88. The complaint alleged, among others: that petitioner is the first, true and actual inventor of an aerial fuze denominated as "Fuze, PDR 77 CB4" which it developed as early as December 1981 under the Self-Reliance Defense Posture Program (SRDP) of the AFP; that sometime in 1986, petitioner began supplying the AFP with the said aerial fuze; that private respondent's aerial fuze is identical in every respect to the petitioner's fuze; and that the only difference between the two fuzes are miniscule and merely cosmetic in nature. Petitioner prayed that a temporary restraining order and/or writ of preliminary injunction be issued enjoining private respondent including any and all persons acting on its behalf from manufacturing, marketing and/or

profiting therefrom, and/or from performing any other act in connection therewith or tending to prejudice and deprive it of any rights, privileges and benefits to which it is duly entitled as the first, true and actual inventor of the aerial fuze.On December 10, 1993, the trial court issued a temporary restraining order. Thereafter, hearings were held on the application of petitioner for the issuance of a writ of preliminary injunction, with both parties presenting their evidence. After the hearings, the trial court directed the parties to submit their respective memoranda in support of their positions.On December 27, 1993, private respondent submitted its memorandum 7 alleging that petitioner has no cause of action to file a complaint for infringement against it since it has no patent for the aerial fuze which it claims to have invented; that petitioner's available remedy is to file a petition for cancellation of patent before the Bureau of Patents; that private respondent as the patent holder cannot be stripped of its property right over the patented aerial fuze consisting of the exclusive right to manufacture, use and sell the same and that it stands to suffer irreparable damage and injury if it is enjoined from the exercise of its property rights over its patent.On December 29, 1993, the trial court issued an Order 8 granting the issuance of a writ of preliminary injunction against private respondent the dispositive portion of which reads:WHEREFORE, plaintiffs application for the issuance of a writ of preliminary injunction is granted and, upon posting of the corresponding bond by plaintiff in the amount of PHP 200,000.00, let the writ of preliminary injunction be issued by the branch Clerk of this Court enjoining the defendant and any and all persons acting on its behalf or by and under its authority, from manufacturing, marketing and/or selling aerial fuzes identical, to those of plaintiff, and from profiting therefrom, and/or from performing any other act in connection therewith until further orders from this Court.Private respondent moved for reconsideration but this was denied by the trial court in its Order 9 of May 11, 1994, pertinent portions of which read:For resolution before this Court is the Motion for Reconsideration filed by the defendant and the plaintiff's Opposition thereto. The Court finds no sufficient cause to reconsider its order dated December 29, 1993. During the hearing for the issuance of the preliminary injunction, the plaintiff has amply proven its entitlement to the relief prayed for. It is undisputed that the plaintiff has developed its aerial fuze way back in 1981 while the defendant began manufacturing the same only in 1987. Thus, it is only logical to conclude that it was the plaintiff's aerial fuze that was copied or imitated which gives the plaintiff the right to have the defendant enjoined "from manufacturing, marketing and/or selling aerial fuzes identical to those of the plaintiff, and from profiting therefrom and/or performing any other act in connection therewith until further orders from this Court." With regards to the defendant's assertion that an action for infringement may only be brought by "anyone possessing right, title or interest to the patented invention," (Section

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42, RA 165) qualified by Sec. 10, RA 165 to include only "the first true and actual inventor, his heirs, legal representatives or assignees, "this court finds the foregoing to be untenable. Sec. 10 merely enumerates the persons who may have an invention patented which does not necessarily limit to these persons the right to institute an action for infringement. Defendant further contends that the order in issue is disruptive of the status quo. On the contrary, the order issued by the Court in effect maintained the status quo. The last actual, peaceable uncontested status existing prior to this controversy was the plaintiff manufacturing and selling its own aerial fuzes PDR 77 CB4 which was ordered stopped through the defendant's letter. With the issuance of the order, the operations of the plaintiff continue. Lastly, this court believes that the defendant will not suffer irreparable injury by virtue of said order. The defendant's claim is primarily hinged on its patent (Letters Patent No. UM-6983) the validity of which is being questioned in this case.WHEREFORE, premises considered, the Motion for Reconsideration is hereby denied for lack of merit.SO ORDERED.Aggrieved, private respondent on June 27, 1994, filed a petition for certiorari, mandamus and prohibition 10 before respondent Court of Appeals raising as grounds the following:a. Petitioner has no cause of action for infringement against private respondent, the latter not having any patent for the aerial fuze which it claims to have invented and developed and allegedly infringed by private respondent;b. the case being an action for cancellation or invalidation of private respondent's Letters Patent over its own aerial fuze, the proper venue is the Office of the Director of Patents;c. The trial court acted in grave abuse of discretion and/or in excess of jurisdiction in finding that petitioner has fully established its clear title or right to preliminary injunction;d. The trial court acted in grave abuse of discretion and/or in excess of jurisdiction in granting the preliminary injunction, it being disruptive of the status quo; ande. The trial court acted in grave abuse of discretion and/or in excess of jurisdiction in granting the preliminary injunction thereby depriving private respondent of its property rights over the patented aerial fuze and cause it irreparable damages.On November 9, 1994, the respondent court rendered the now assailed decision reversing the trial court's Order of December 29, 1993 and dismissing the complaint filed by petitioner.The motion for reconsideration was also denied on January 17, 1995. 11 Hence, this present petition.It is petitioner's contention that it can file, under Section 42 of the Patent Law (R.A. 165), an action for infringement not as a patentee but as an entity in possession of a right, title or interest in and to the patented invention. It

advances the theory that while the absence of a patent may prevent one from lawfully suing another for infringement of said patent, such absence does not bar the first true and actual inventor of the patented invention from suing another who was granted a patent in a suit for declaratory or injunctive relief recognized under American patent laws. This remedy, petitioner points out, may be likened to a civil action for infringement under Section 42 of the Philippine Patent Law.We find the above arguments untenable.Section 42 of R.A. 165, otherwise known as the Patent Law, explicitly provides:Sec. 42. Civil action for infringement. — Any patentee, or anyone possessing any right, title or interest in and to the patented invention, whose rights have been infringed, may bring a civil action before the proper Court of First Instance (now Regional Trial court), to recover from the infringer damages sustained by reason of the infringement and to secure an injunction for the protection of his right. . . .Under the aforequoted law, only the patentee or his successors-in-interest may file an action for infringement. The phrase "anyone possessing any right, title or interest in and to the patented invention" upon which petitioner maintains its present suit, refers only to the patentee's successors-in-interest, assignees or grantees since actions for infringement of patent may be brought in the name of the person or persons interested, whether as patentee, assignees, or as grantees, of the exclusive right. 12 Moreover, there can be no infringement of a patent until a patent has been issued, since whatever right one has to the invention covered by the patent arises alone from the grant of patent. 13 In short, a person or entity who has not been granted letters patent over an invention and has not acquired any light or title thereto either as assignee or as licensee, has no cause of action for infringement because the right to maintain an infringement suit depends on the existence of the patent. 14Petitioner admits it has no patent over its aerial fuze. Therefore, it has no legal basis or cause of action to institute the petition for injunction and damages arising from the alleged infringement by private respondent. While petitioner claims to be the first inventor of the aerial fuze, still it has no right of property over the same upon which it can maintain a suit unless it obtains a patent therefor. Under American jurisprudence, an inventor has no common-law right to a monopoly of his invention. He has the right to make, use and vend his own invention, but if he voluntarily discloses it, such as by offering it for sale, the world is free to copy and use it with impunity. A patent, however, gives the inventor the right to exclude all others. As a patentee, he has the exclusive right of making, using or selling the invention. 15Further, the remedy of declaratory judgment or injunctive suit on patent invalidity relied upon by petitioner cannot be likened to the civil action for infringement under Section 42 of the Patent Law. The reason for this is that

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the said remedy is available only to the patent holder or his successors-in-interest. Thus, anyone who has no patent over an invention but claims to have a right or interest thereto can not file an action for declaratory judgment or injunctive suit which is not recognized in this jurisdiction. Said person, however, is not left without any remedy. He can, under Section 28 of the aforementioned law, file a petition for cancellation of the patent within three (3) years from the publication of said patent with the Director of Patents and raise as ground therefor that the person to whom the patent was issued is not the true and actual inventor. Hence, petitioner's remedy is not to file an action for injunction or infringement but to file a petition for cancellation of private respondent's patent. Petitioner however failed to do so. As such, it can not now assail or impugn the validity of the private respondent's letters patent by claiming that it is the true and actual inventor of the aerial fuze.Thus, as correctly ruled by the respondent Court of Appeals in its assailed decision: "since the petitioner (private respondent herein) is the patentee of the disputed invention embraced by letters of patent UM No. 6938 issued to it on January 23, 1990 by the Bureau of Patents, it has in its favor not only the presumption of validity of its patent, but that of a legal and factual first and true inventor of the invention."In the case of Aguas vs. De Leon, 16 we stated that:The validity of the patent issued by the Philippine Patent Office in favor of the private respondent and the question over the investments, novelty and usefulness of the improved process therein specified and described are matters which are better determined by the Philippines Patent Office. The technical Staff of the Philippines Patent Office, composed of experts in their field, have, by the issuance of the patent in question, accepted the thinness of the private respondent's new tiles as a discovery. There is a presumption that the Philippine Patent Office has correctly determined the patentability of the improvement by the private respondent of the process in question.In fine, in the absence of error or abuse of power or lack of jurisdiction or grave abuse of discretion, we sustain the assailed decision of the respondent Court of Appeal.WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. No pronouncement as to costs.SO ORDERED.Regalado, Melo, Puno and Mendoza, JJ., concur.

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G.R. No. L-1816            April 17, 1906CARLOS GSELL, plaintiff-appellee, vs.VALERIANO VELOSO YAP-JUE, defendant-appellant.Chicote, Miranda and Sierra, for appellant.Coudert Brothers, for appellee.JOHNSON, J.:This was an action by the plaintiff to recover of the defendant damages for the infringement of a certain patent issued by the Spanish Government to the assignor of the plaintiff.An examination of the evidence adduced during the trial shows that upon the 17th day of June, 1896, Henry Alfred Gsell presented a petition to the "Spanish Government to be granted a patent for manufacturing umbrella and cane handles, which patent was as follows:Descriptive statement which accompanies the application for patent of invention for the industrial product 'handles for canes and umbrellas, curred by means of a small lamp or blowpipe, fed buy petroleum or mineral fuel.'After the canes have been cut for cane or umbrella handles, the outsides are thoroughly cleaned. This operation having been performed, they are then trimmed and the interior cleaned by means of a gimlet of about fifteen centimeters in length operated by a wheel, by means of which the knots inside are broken. There is then introduced to a depth of about fifteen centimeters a piece of very clean: bamboo, which completely fills the hole made by the gimlet, thereby giving to the cane necessary strength to resist the heat of the lamp or blowpipe without breaking or cracking.This operation having been performed, the cane, the end of which is attached to a fixed point, is given the shape of a hook or some other form by means of fire and pressure. Once the cane has been shaped desired, it is allowed to cool, and is then cleaned, varnished, and ornamented at will.This industry requires skillful handiwork, owing to the great risk engendered by the treatment of such fragile material as a light cane. On the other hand, however, it affords large profits to the workman.NOTE. — The patent applied for shall be for the industrial product 'cane handles for walking sticks and umbrellas, curved by means of a small lamp or blowpipe, fed by petroleum or mineral fuel.'Madrid, June 17, 1896.Which petition was granted in the following decree:Whereas Mr. Henry Alfred Gsell, of ............. has filed under date of the 17th of June, 1896, in the civil government of Madrid, an application for a patent of an invention, consisting of a process for curving handles for canes and umbrellas by means of a lamp or blowpipe fed by petroleum or mineral fuel.He having complied with the provisions of the law of July 30, 1878, the undersiged by virtue of the power conferred upon him by article 4 of the royal decree of July 30, 1887, issues by order of his excellency the minister of the interior, in favor of said party, the present patent of invention which guarantees to him the Peninsula and adjacent islands, for the term of vein ...... from the date of the present title, the exclusive right to the

exploitation of the said industry, in the form described in the statement attached to ........ He may extend it to the colonies, provided he complies with the provisions of article 2 of the royal decree of May 14, 1880.Of this patent the division of industry and registration of industrial property ............ shall make a record to be forwarded to the minister of the interior; and it is provided that the same shall expire and shall be null and void if the interested party should fail to pay to the said division, and in ............ section 14 of the law, the annual fees prescribed in article 13, and fails to show to the chief of the same division within the fixed time of ............ from this date, which has been put in practice in Spain, the object of the patent, establishing a new industry in the country. Madrid, 28 ............, 1896.(Signed) FEDERICO COBO DE GUZMAN.Seal of division of industry and registration of industrial and commercial property.Recorded in book 25, page 111, under No. 19228.OFFICE OF THE COLONIES.Article 2 of the royal decree of May 14, 1880, complied with.Madrid, October 31, 1896.The chief of the division: (Signed) TOMAS LUCEÑO.[SEAL]By virtue of this patent Henry Alfred Gsell was granted the exclusive right to use the same in the Philippine Islands for a period of twenty years. On May 1, 1899, Henry Alfred Gsell transferred the said patent and the exclusive right to use the same to the plaintiff herein.The evidence clearly shows that the defendant was manufacturing umbrella and cane handles bag the same method as that used by the plaintiff, under and by virtue of his said patent.Under the treaty of Paris the United States Government undertook to protect citizens of the Philippine Islands in their rights secured by copyrights, patents, etc., from the Spanish Government, in the following language:ART. 13. The rights of property secured by copyrights and patents acquired by Spaniards in the Island of Cuba, and in Porto Rico, the Philippines, and other ceded territories, at the time of the exchange of the ratifications of this treaty, shall continue to be respected. Spanish scientific, literary, and artistic works not subversive of public order in the territories in question shall continue to be admitted free of duty into such territories, for a period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty.By virtue of the foregoing provisions of said treaty, Circular No. 12, Division of Customs and Insular Affairs, dated Washington, D. C., April 11, 1899, was issued by the Assistant Secretary of War and is as follows:In territory subject to military government by the military forces of the United States, owners of patents, including design patents, which have been issued or which may hereafter be issued, and owners of trade-marks, prints, and labels, duly registered in the United States Patent Office, under the laws of

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the United States relating to the grant of patents and the registration of trade-marks, prints, and labels, shall receive the protection accorded them in the United States under said laws; and an infringement of the rights secured by lawful issue of a patent or by registration of a trade-mark, print, or label shall subject the person or party guilty of such infringement to the liability created and imposed by the laws of the United States relating to said matters: Provided, That a duly certified copy of the patents or of the certificate of registration of the trade-mark, print, or label shall be filed in the office of the Governor-General of the Island wherein such protection is desired: And provided further, That the rights of property in patents and trade-mark, secured in the Islands of Cuba, Porto Rico, the Philippines, and other ceded territory to persons under the Spanish laws shall be respected in said territory the same as if such laws were in full force and effect.(Signed) G. D. MEIKLEJOHN,Assistant Secretary of War.Circular No. 21, Division of Customs and Insular Affairs, dated Washington, D. C., June 1, 1899, as amended by Circular No. 34 of the same Department, dated September 25, 1899, required the holds of patents in the insular possessions of the United States to file with the proper authorities a certified copy of a patent or a certificate of registration, etc.In a letter dated Manila, P. I., August 12, 1899, George P. Ahern, captain, Ninth Infantry United States Army, who was then in charge of the Office of Patent, Copyrights, and Trade-Marks, which letter was directed to the plaintiff herein, said:I have the honor to hand you herewith nine patents, namely (among others was mentioned the patent here in question), now legally held by you, which have been granted under the Spanish law.Said patent right will be protected by the United States authorities in these Islands, pursuant to Circular No. 12, Division of Customs and Insular Affairs, War Department, Washington, D. C., April 11, 1899."Provided further, That the rights of property in patents and trade-marks secured in the Islands of Cuba, Porto Rico, the Philippines, and other ceded territory to persons under the Spanish laws shall be respected in said territory the same as if such laws were in full force and effect."On the 29th on January, 1900, Capt. George P. Ahern, who was then in charge of the Office of Patents, Copyrights, and Trade-Marks, addressed the following letter to the plaintiff herein:MANILA, P. I.SIR: This is to certify, in reply to your request of December 20, 1899, and pursuant to the provisions of Spanish law, and by virtue of the duties as prescribed for the undersigned in General Orders, No. 24, office of the United States military governor in the Philippine Islands, Manila, P. I., June 26, 1899, an inspection was made of your factory in Calle San Pedro, Manila, by the undersigned officer on the 26th day of January, 1900, patent number 19228, granted H. A. Gsell, Madrid, Spain, September 28, 1896,

transferred to Carlos Gsell, May 1, 1899, for an exclusive privilege of twenty years of a process for curving sticks and umbrella handles.A careful inspection was made of the process as per the specifications accompanying said patent, and all of said specifications and process were found to be in operation as required by law.(Signed) GEORGE P. AHERN,Captain, Ninth United States Infantry,In Charge of Office.At the close of the trial, and after the evidence had all been introduced, the lower court gave the plaintiff permission to amend his complaint, and also gave the defendant an opportunity to file an amended answer. The court granted this permission to amend the original complaint under and by virtue of the provisional of section 110 of the Code of Procedure in Civil Actions. This order of the court was excepted to on the part of the defendant. Said section 110 provides that —The court shall, in furtherance of justice, and on such terms, if any, as may be proper, allow a party to amend any pleading or proceeding and at any stage of the action, in either the Court of First Instance or the Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant, or by correcting a mistake in the name of a party, or s mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. The court may also, upon like terms, allow an answer or other pleading to be made after the time limited by the rules of the court for filing the same. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.We are of the opinion that this section justified the court in allowing the amendment.The appellant assigned several other errors alleged to have been committed by the inferior court, some of which we deem unnecessary to be considered here in the decision of this cause. The trial court, in his decision, stated that there were but two questions at issue: First, Did the Government issue to plaintiff's assignor the patent which covers the process in question? And second, Did the defendant infringe upon that process?An examination of the evidence adduced during the trial shows clearly that the Government of Spain did, upon the 28th day of September, 1896, grant to the plaintiff's assignor the patent in question, giving to him the exclusive right to use the name for a period of twenty years from that date. The evidence also shows clearly that the defendant used, and had been using, the same process for the manufacture of walking sticks and umbrella handle, the exclusive right to which had been granted to, the plaintiff's assignor. The evidence also shows that the original grantee of the patent, Henry Alfred Gsell, had duly transferred to the plaintiff herein, and that the plaintiff herein thereby succeeded to all of the right granted in said letter patent.

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The lower court made no finding as to the damages suffered by the plaintiff by reason to-the unlawful use by the defendant of the said patent.From all of the evidence adduced during the trial of said cause, we are convinced that the judgment to the inferior court should be affirmed with costs. After the expiration of twenty days let a judgment be entered perpetually enjoining the defendant, his attorneys, agents, and representatives of whatever character, from the use of the process for manufacture of walking sticks and umbrella handles, the exclusive right to the manufacture of which was granted to plaintiff's assignor on the 28th day September, 1896. So ordered.Arellano, C.J., Torres, Mapa, and Carson, JJ., concur.

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G.R. No. L-1952 December 6, 1906CARLOS GSELL, plaintiff-appellant, vs.VALERIANO VELOSO YAP-JUE, defendant-appellee.Coudert Brothers for appellant.Chicote, Miranda and Sierra for appellee.

MAPA, J.:In an action between the plaintiff and the defendant herein judgment was rendered in the court below on the 11th of December, 1903, the adjudging part of which is as follows: "It is ordered that the defendant (the accused in these proceedings) abstain from manufacturing canes and umbrellas with a curved handle by means of lamp or blowpipe fed with mineral oil petroleum, which process was protected by patent No. 19228, issued in favor of Henry Gsell, and by him transferred to Carlos Gsell." In the month of February, 1904, the plaintiff presented a petition alleging that on "the 8th of the said month, and some time prior to that date, the defendant in obedience of the aforesaid judgment, and in violation of the same, was and is now engaged in the unlawful manufacture of umbrella handles by the identical process so like the patent process as to be indistinguishable," and accordingly asked the court to punish the accused for contempt and to order the latter to indemnify the plaintiff as damages in the sum of $1,000, United States, currency, and to pay the costs.The parties having appeared in open court and stipulated that "the defendant had used, and was still using, as a process for curving canes and umbrella handles, the same process described in the memoir which accompanied the patent, with the exception that he has substituted for an oil an alcohol-burning lamp."The court considering that the plaintiff had only the exclusive right to the use of the coal or mineral oil-burning lamp, held that the defendant was not guilty of contempt, to which decision of the court the plaintiff duly excepted.Patent No. 19228, referred to in the judgment of the 11th of December, 1903, does not appear in the bill of exceptions. Such these are contempt proceedings for the disobedience of said judgment, we should have before us the patent in order to determine whether there was any actual disobedience of the order of the court. It is evident that the accused had not committed any direct violation, plain and manifest, of the prohibition imposed upon him in the judgment. The violation, if there has been any, was not of such a character that it could be made patent by the mere enunciation of the acts performed by the defendant, which are alleged to constitute the said violation. These acts were not clearly and manifestly contrary to the precise terms of the prohibition. According to the express language of the judgment, the prohibition is against the manufacture of canes and umbrellas with curved handles by blowpipe, and the parties have stipulated that the defendant did not use a coal or mineral oil-burning lamp, but an alcohol-burning lamp.

The question, however, arises as to whether that prohibition included the substitution of alcohol for coal or mineral oil. In more abstract and general terms, the appellant propounds this question in his brief as follows: "The question presented by this appeal is whether or not the use of a patented process by a third person, without license or authority therefor, constitutes an infringement when the alleged infringer has substituted in a lieu of some unessential part of the patented process a well-known mechanical equivalent." It is seen that by it very terms this question implies in the present case the existence of two fundamental facts which must first be duly established, viz; (1) That the use of the lamp fed with petroleum or mineral oil was unessential part of the patented process the use of which by the accused was prohibited by the said judgment; and (2) that alcohol is equivalent and proper substitute, well known as such, for mineral oil petroleum in connection with the said process. The appellant has failed to affirmatively establish either of these two essential facts. He has merely assumed their existence, without proving the same, thus begging the whole question. Consequently the contempt with which the accused is charged has not been fully and satisfactorily proved, and the order appealed from should accordingly be affirmed in so far as it holds that the defendant is not guilty of contempt.Having reached this conclusion, it is unnecessary for us to pass upon plaintiff's prayer for a preliminary injunction, as the same is based upon the alleged infringement of the patent upon which these proceedings for contempt were based.The order of the court below is hereby affirmed, with the costs of this instance against the appellant. After the expiration of twenty days let judgment be entered in accordance herewith, and ten days thereafter the case be remanded to the court below for execution. So ordered.Arellano, C.J., Torres, Carson, Willard and Tracey, JJ., concur.

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G.R. No. L-4720             January 19, 1909CARLOS GSELL, plaintiff-appellee, vs.VALERIANO VELOSO YAP-JUE, defendant-appellant.Chicote and Miranda, for appellant.Haussermann and Cohn, for appellee.CARSON, J.:This an appeal from a final order of the Court of First Instance of the city of Manila, in contempt proceedings prosecuted under the provisions of section 172 of the Code of Civil Procedure. The principal case to which these proceedings are ancillary, was an action to enjoin infringement of a patented process for the manufacture of curved handles for canes, parasols, and umbrellas. In that case plaintiff established his title to a valid patent covering the process in question, and obtained against this defendant a judgment, granting a perpetual injunction restraining its infringement, which judgment was affirmed by this court on appeal (6 Phil. Rep., 143.) The order was couched in the following terms:It is ordered that the defendant abstain from manufacturing canes and umbrellas with a curved handle by means of a lamp or blowpipe fed with mineral oil or petroleum, which process was protected by patent No. 19228, issued in favor of Henry Gsell, and by him transferred to Carlos Gsell —and the process therein mentioned is fully described in the following statement which accompanied the application for the patent:After the canes have been cut for cane or umbrella handles, the outsides are thoroughly cleaned. This operation having been performed, they are then trimmed and the interior cleaned by means of a gimlet of about 15 centimeters in length operated by a wheel, by means of which the knots inside are broken. There is then introduced to a depth of about 15 centimeters a piece of very clean bamboo, which completely fills the hole made by the gimlet, thereby giving to the cane the necessary strength to resist the heat of the lamp or blowpipe without breaking or cracking.This operation having been performed, the cane, the end of which is attached to a fixed point, is given the shape of a hook or some other form by means of fire and pressure. Once the cane has been shaped as desired, it is allowed to cool, and is then cleaned, varnished, and ornamented at will.This industry requires skillful, handiwork, owing to the great risk engendered by the treatment of such fragile material as a light cane. On the other hand, however, it affords large profits to the workman.NOTE. — The patent applied for shall be for the industrial product "cane handles for walking sticks and umbrellas, curved by means of a small lamp or blowpipe, fed by petroleum or mineral fuel."Thereafter the defendant continued to manufacture curved cane handled for walking sticks and umbrellas by a process in all respectes identical with that used by the plaintiff under his patent, except only that he be substituted for a lamp fed with petroleum or mineral oil, lamp fed with alcohol, as appears from a stipulation entered into between plaintiff and defendant in the following terms:

The plaintiff and defendant agree upon the fact that the defendant has used and is still using a process for curving handles of canes and umbrellas identical with that described in the application for the patent by the plaintiff with the exception that he has substituted for the lamp fed with all other lamp fed with alcohol.Contempt proceedings were instituted against the defendant in the month of February, 1904, the plaintiff in the original action alleging that the —Defendant in disobediencce of the judgment of the same was and is now engaged in the unlawful manufacture of umbrella handles by the identical process described in and protected said patent, No. 19228, or a process so like the patented process as to be indistinguishable.The trial court found the defendant "not guilty" of contempt as charged; and this court, on appeal, held that — a character that it could be made patent by the mere annunciation of the acts performed by the defendant, which are alleged to constitute the said violation. These acts were not clearly and manifestly contrary to the precise terms of the prohibition. According to the express language of the judgment, the prohibition is against the manufacture of canes and umbrellas with curved handles by means of the use of a cool or mineral oil-burning lamp or blowpipe and the parties have stipulated that the defendant did not use a coal or mineral oil-burning lamp but an alcohol-burning lamp.The question, however, arises as to whether that prohibition included the substitution of alcohol for coal or mineral oil. In more abstract and general terms, the appellant propounds this question in his brief, as follows: "The question presented by this appeal is whether or not the use of a patented process by a third person, without license or authority therefor, constitutes an infringement when the alleged infringer has substituted in lieu of some unessential part of the patented process a well-known mechanical equivalent." It has seen that by its very terms this question implies in the present case the existence of two fundamental facts which must first be duly established, viz: (1) That the use of the lamp fed with petroleum or mineral oil was an unessential part of the patented process the use of which by the accused was prohibited by the said judgment; and (2) that alcohol is an equivalent and proper substitute, well known as such, for mineral oil or petroleum in connection with the said process. The appellant has failed to affirmatively establish either of these two essential facts. He has merely assumed their existence, without proving the same, thus begging the whole question. Consequently the contempt with which the accused is charged has not been fully and satisfactorily proved, and the order appealed from should accordingly be affirmed in so far as it holds that the defendant is not guilty of contempt. (7 Phil. Rep., 130).Thereafter the plaintiff continued the use of the patented process, save only for the substitutions of a lamp fed by alcohol for a lamp fed by petroleum or mineral oil, and new proceedings were instituted under the provisions of section 172 for the purpose of enforcing the original injunction above cited.

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Substantially the same question is submitted in these new proceedings as that submitted in the former case, but at the trial of this case testimony was introduced which, in our opinion, leaves no room for doubt, first, that alcohol is an equivalent or substitute, well known as such at the time when the patent was issued, for mineral oil or petroleum, in connection with blast lamps or blowpipes such as that which plaintiff uses in the patented process, and, second, that the use of a blast lamp or blowpipe fed with petroleum or mineral oil, rather than one fed with alcohol, is an unessential part of the patented process the use of which was prohibited by the said judgment.It was clearly proven at the trial, that kerosene and alcohol blast lamps are agencies for producing and applying heat, well known throughout the world long prior to 1906, the date of the issue of the patent; that it is and for many years has been known that one may for all ordinary purposes be used in the place of the other, and especially for the purpose of applying heat in the manner described in the patent; that the only consideration which determines the employment of one in place of the other is the convenience of the user and the question of relative cost; and that the principle upon which both lamps work is substantially identical, the only difference in construction being occasioned by the application of this principle to oils of different physical and chemical composition.The plaintiff does not and can not claim a patent upon the particular lamp used by him. The patent, however, gives him the exclusive right to the use of "la lamparilla o soplete, alimentada de petroleo o esencia mineral" (the small lamp or blowpipe fed with petroleum or mineral oil) in manufacturing curved handles for umbrellas and canes, to which reference is made in the above-cited descriptive statement and annexed note. "The small lamp or blowpipe" mentioned in the descriptive statement and annexed note which accompanied the application for the patent, evidently referred to the design of a blast lamp which was attached thereto; and in our opinion both plaintiff and defendant make use of a blast lamp substantially similar, in principle and design, to that referred to in the descriptive statement and the annexed note, for the exclusive use of which in the manufacture of curved handles, plaintiff holds a patent. True, defendant's blast lamp is fed with alcohol, and its shape varies in unimportant details, for the purpose of accommodating the principle, by which the flame is secured, to the different physical and chemical composition of the fuel used therein; but the principle on which it works, its mode of application, and its general design distinguish it in no essential particular from that used by the plaintiff. If the original design accompanying the statement had shown a blast lamp made of brass or delf, he would be a reckless advocate who would claim that the patent might lawfully be evaded by the use of a lamp made of iron or tin; or if the original design had shown a blast lamp 6 inches high with a nozzle 4 inches long it would hardly be seriously contended that the use of lamp 8 inches high with a nozzle 3 inches long would protect the ingenious individual, who in all other respects borrowed the patented process, from the consequences of an

action for damages for infringement. But in the light of the evidence of record in this case, the reasoning upon which these hypothetical claims should be rejected applies with equal force to the contentions of the defendant, the ground for the rejection of the claims in each case being the same, and resting on the fact that unessential changes, which do not affect the principle of the blast lamp used in the patented process, or the mode of application of heat authorized by the patent, are not sufficient to support a contention that the process in one case is in any essential particular different from that used in the other.Counsel for plaintif invokes the doctrine of "mechanical equivalents" in support of his contention, and indeed that doctrine is strikingly applicable to the facts in this case. This doctrine is founded upon sound rules of reason and logic, and unless restrained or modified by law in particular jurisdiction, is of universal application, so that it matters not whether a patent be issued by one sovereignty or another, the doctrine may properly be invoked to protect the patentee from colorable invasions of his patent under the guise of substitution of some part of his invention by some well known mechanical equivalent. Our attention has not been called to any provision of the patent law of Spain, which denies to patentees thereunder the just and equitable protection of the doctrine; and indeed a patent law which failed to recognize this doctrine would afford scant protection to inventors, for it is difficult if not impossible to conceive an invention, which is incapable of alteration or change in some unessential part, so as to bring that part outside of the express terms of any form of language which might be used in granting a patent for the invention; and has been well said by counsel for plaintiff, human ingenuity would be taxed beyond its powers in preparing a grant of a patent so comprehensive in its terms, "as to include within the express terms of its detailed description every possible alternative of form, size, shape, material, location, color, weight, etc., of every wheel, rod, bolt, nut, screw, plate, and other component parts of an invention."The following citations from various decisions of the Federal Courts of the United States illustrate the application of the doctrine in that jurisdiction, and clearly point the way to the proper solution of the questions involved in the case at bar:Can the defendant have the right of infringement, by substituting in lieu of some parts of the combination well-known mechanical equivalents? I am quite clear that be can not, both on principle and authority. It is not to be disputed that the inventor of an ordinary machine is, by his letters patent, protected against all mere formal alterations and against the substitution of mere mechanical equivalents. Why should not the inventor of a new combination receive the same protection? If he can not, then will his patent not be worth the parchment on which it is written.If no one can be held to infringe a patent for a combination unless he uses all the parts of the combination and the identical machinery as that of the patentee, then will no patent for a combination be infringed; for certainly no

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one capable of operating a machine can be incapable of adopting some formal alteration in the machinery, or of substituting mechanical equivalents. No one infringes a patent for a combination who does not employ all of the ingredients of the combination; but if he employs all the ingredients, or adopts mere formal alterations, or substitutes, for one ingredient another which was well known at the date of the patent as a proper substitute for the one withdrawn, and which performs substantially the same function as the one withdrawn, he does infringe. (King vs. Louisville Cement Co., Fed. Cas., 7798.)Bona fide inventors of a combination are as much entitled to equivalents as the inventors other patentable improvements; by which is meant that a patentee in such a case may substitute another ingredient for any one of the ingredients of his invention, if the ingredient substituted performs the same function as the one omitted and as well known at the date of his patent as a proper substitute for the one omitted in the patented combination. Apply that rule and it is clear that an alteration in a patented combination which merely substitutes another old ingredient for one of the ingredients in the patented combination, is an infringement of the patent, if the substitute performs the same function and was well known at the date of the patent as a proper substitute for the omitted ingredient. (Gould vs. Rees, 82 U.S., 187, 194.)Mere formal alterations in a combination in letters patent are no defense to the charge of infringement and the withdrawal of one ingredient from the same and the substitution of another which was well known at the date of the patent as a proper substitute for the one withdrawn is a mere formal alteration of the combination if the ingredient substituted performs substantially the same function as the one withdrawn.Bona fide inventors of a combination are as much entitled to suppress every other combination of the same ingredients to produce the same result, not substantially different from what they have invented and caused to be patented as to any other class of inventors. All alike have the right to suppress every colorable invasion of that which is secured to them by letters patent. (Seymour vs. Osborne, 78 U.S., 516, 556.)A claim for the particular means and mode of operation described in the specification extends, by operation of law, to the equivalent of such means — not equivalent simply because the same result is thereby produced — but equivalent as being substantially the same device in structure, arrangement and mode of operation. (Burden vs. Corning, Fed. Cas., 2143. Gottfried vs. Philip Best Brewing Co., Fed. Cas., 5633.)An equivalent device is such as a mechanic of ordinary skill in construction of similar machinery, having the forms, specifications and machine before him, could substitute in the place of the mechanism described without the exercise of the inventive faculty. (Burden vs. Corning, supra.)All the elements of the invention in this case are old, and the rule in such cases, as before explained, undoubtedly is that a purpose can not invoke the doctrine of equivalents to suppress all other improvements of the old

machine, but he is entitled to treat everyone as an infringer who makes, uses, or vends his patented improvement without any other change than the employment of a substitute for one of its elements, well known as such at the date of his invention, and which any constructor acquainted with the art will know how to comply. The reason for the qualification of the rule as stated is, that such change — that is, the mere substitution of a well- known element for another — where it appears that the substituted element was well known as a usual substitute for the element left out — is merely a formal one, and nothing better than a colorable evasion of the patent. (Union Sugar Refining Co. vs. Matthieson, Fed. Cas., 14399.)Counsel for the defendant insists that, under Spanish law, none of the steps of the process described in the descriptive statement, save those mentioned in the "note" thereto attached are included in the patent, and that the patent rights secured thereunder are strictly limited to the precise language of the "note" attached to the descriptive statement; while counsel for plaintiff appears to think that the language of the patent covers any process or device whereby wood or cane may be bent or curved by the use of heat. But for the purpose of this decision it is not necessary to consider these questions, further than to hold, as we do, that under the doctrine of equivalents, the language of the note in the descriptive statement applies to the operation of applying heat for the purpose of curving handles or canes and umbrellas by means of a blast lamp fed with alcohol, as well as by means of a blast lamp fed with petroleum or mineral oil; and the defendant having admitted the fact that he applied heat for the purpose of curving handles for canes and umbrellas by means of a blast lamp fed with alcohol, he must be deemed to have contempt of violating the terms and the injunction issued in the principal case, wherein plaintiff was declared the owner of the patent in question, and defendant enjoined from its infringement.The argument of counsel for defendant and appellant, based on the theory that the questions herein discussed and decided to have been heretofore settled by this court, and that the subject-matter of this proceeding is res adjudicata between the parties thereto is sufficiently refuted by the simple reading of the decision of this court in the case relied upon. (Gsell vs. Veloso, 7 Phil. Rep., 130.)The judgment of the lower court should be and is hereby affirmed, with the costs of this instance against the appellant.Arellano, C.J., Torres, Mapa, Willard, and Tracey, JJ., concur.

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G.R. No. 14101           September 24, 1919ANGEL VARGAS, plaintiff-appellant, vs.F. M. YAPTICO & CO. (Ltd.), defendant-appellee.Charles C. Cohn for appellants .John Bordman for appellee.MALCOLM, J.:Rude wooden implements for tilling the soil have been in use in the Philippines, possibly not since the Israelites "went down to sharpen every man his share and his coulter," but certainly for many years. Iron plows called "Urquijo" and "Pony" have latterly been the vogue.Angel Vargas, a farmer acquainted with local conditions and alive to the commercial possibilities, took it upon himself to produce, with the native plow as the model, an improved, adjustable plow. On July 22, 1910, he made application for a United States patent to cover his so-called invention. On March 12, 1912, letters patent were issued by the United States Patent Office in favor of Vargas .On April 24, 1912, a certified copy of the patent was filed in the Division of Patents, Copyrights, and Trademarks of the Executive Bureau, Government of the Philippine Islands. The patent and its registry was also published in the newspaper, El Tiempo.Since 1910, Vargas has engaged in the manufacture of these plows in the city of Iloilo, Philippine Islands. On the plows there was first stamped the words "Patent Applied For," later after the patent had been granted, changed to "Patented Mar. 12, 1912." Ninety per cent of the plows in use in the Visayas (Iloilo and vicinity) are said to be Vargas plows.During this same period, the firm of F. M. Yaptico & Co. (Ltd.), was engaged in the foundry business in the City of Iloilo. It openly held itself out as a manufacturer of plow parts. It has in fact produced points, shares, shoes, and heel pieces in a considerable amount adapted to replace worn-out parts of the Vargas plow.Such was the existing situation when, in the early part of 1918, the owner of the patent, and thus the proper party to institute judicial proceedings, began action in the Court of First Instance of Iloilo to enjoin the alleged infringement of U.S. Patent No. 1020232 by the defendant F. M Yaptico & Co. (Ltd.), and to recover the damages suffered by reason of this infringement. The court issued the preliminary injunction as prayed for. The defendant, in addition to a general denial, alleged, as special defenses, that the patent lacked novelty or invention, that there was no priority of ideas or device in the principle and construction of the plow, and that the plow, whose manufacture it was sought to have enjoined by the plaintiff, had already been in public use for more than two years before the application of the plaintiff for his patent. The parties subsequently entered into a stipulation that the court should first resolve the question of whether or not there had been an infraction of the patent, reserving the resultant question of damages for later decision. After the taking of evidence, including the presentation of exhibits, the trial judge, the Honorable Antonio Villareal, in a very exhaustive and learned decision, rendered judgment in favor of the defendant and against the plaintiff,

declaring null and without effect the patent in question and dismissing the suit with costs against the plaintiff .The preliminary injunction theretofore issued was dissolved.From this judgment the plaintiff has appealed, specifying five errors. The principal assignment No. 1 is, that the trial court erred in finding that the patented invention of the plaintiff is lacking in novelty and invention. Defendant, in reply, relies on three propositions, namely: (1) The judgment of the trial court in finding the patent granted plaintiff void for lack of novelty and invention should be affirmed; (2) The patent granted plaintiff is void from the public use of his plow for over two years prior to his application for a patent, and (3) If the patent is valid, there has been no contributory infringement by defendant.Before resolving these rival contentions, we should have before us the relevant law. Act No. 2235 of the Philippine Legislature, enacted on February 10, 1913, in effect makes the United States Patent Laws applicable in the Philippine Islands. It provides that "owners of patents, including design patents, which have been issued or may hereafter be issued, duly registered in the United States Patent Office under the laws of the United States relating to the grant of patents, shall receive in the Philippine Islands the protection accorded them in the United States under said laws." (Sec. 1.) Turning to the United States Patent Laws, we find the Act of Congress of March 3, 1897, amendatory of section 4886 of the United States Revised Statutes, reading as follows:Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new an useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may upon payment of the fees required by law, and other due proceeding had, obtain a patent therefor. (29 Stat. L., 692, 7 Fed .Stat. Ann. [2d Ed.], p. 23.)When a patent is sought to be enforced, "the question of invention, novelty, or prior use, and each of them, are open to judicial examination." The burden of proof to substantiate a charge of infringement is with the plaintiff. Where, however, the plaintiff introduces the patent in evidence, if it is in due form, it affords a prima facie presumption of its correctness and validity. The decision of the Commissioner of Patents in granting the patent is always presumed to be correct. The burden then shifts to the defendant to overcome by competent evidence this legal presumption .With all due respect, therefore, for the critical and expert examination of the invention by the United States Patent Office, the question of the validity of the patent is one for judicial determination, and since a patent has been submitted, the exact question is whether the defendant has assumed the burden of proof as

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to anyone of his defenses. (See Agawan Co. vs. Jordan [1869], 7 Wall., 583; Blanchard vs .Putnam [1869], 8 Wall., 420; Seymour vs. Osborne [1871], 11 Wall., 516; Reckendorfer vs. Faber [1876], 92 U.S., 347; 20 R. C. L., 1112, 1168, 1169.)As herein before stated, the defendant relies on three special defenses. One such defense, on which the judgment of the lower court is principally grounded, and to which appellant devotes the major portion of his vigorous argument, concerns the element of novelty, invention, or discovery, that gives existence to the right to a patent. On this point the trial court reached the conclusion that "the patented plow of the plaintiff, Exhibit D, is not different from the native plow, Exhibit 2, except in the material, in the form, in the weight and the grade of the result, the said differences giving it neither a new function nor a new result distinct from the function and the result obtained from the native plow; consequently, its production does not presuppose the exercise of the inventive faculty but merely of mechanical skill, which does not give a right to a patent of an invention under the provisions of the Patent Law." In thus finding, the court may have been right, since the Vargas plow does not appear to be such a "combination" as contains a novel assemblage of parts exhibiting invention. (See Stimpson vs. Woodman [1870], 10 Wall., 117 — rollers; Hicks vs. Kelsey [1874], 20 Wall., 353 — stoves; Washburn & Moen Mfg. Co. vs. Beat 'Em All Barbed Wire Co. [1892], 143 U.S., 275 — barbed wire; Lynch vs .Dryden [1873], C. D., 73 — walking cultivators; Torrey vs. Hancock [1910], 184 Fed., 61 — rotary plows.)A second line of defense relates to the fact that defendant has never made a complete Vargas plow, but only points, shares, shoes, and heel pieces, to serve as repairs. Defendant's contention is, that in common with other foundries, he has for years cast large numbers of plow points and shares suitable for use either on the native wooden plow, or on the Vargas plow. A difference has long been recognized between repairing and reconstructing a machine. If, for instance, partial injuries, whether they occur from accident or from wear and tear, to a machine for agricultural purposes, are made this is only re-fitting the machine for use, and thus permissible. (Wilson vs. Simpson [1850], 9 How., 109.) Even under the more rigorous doctrine of Leeds & Catlin Co. vs. Victor Talking Machine Co. ([1909], 213 U.S., 325), it may be possible that all the defendant has done is to manufacture and sell isolated parts to be used to replace worn-out parts.The third defense is, that under the provisions of the statute, an inventor's creation must not have been in public use or on sale in the United States (and the Philippine Islands) for more than two years prior to his application .Without, therefore, committing ourselves as to the first two defenses, we propose to base our decision on the one just suggested as more easily disposing of the case. (See 20 R. C. L., 1140-1142.) We do so with full consciousness of the doubt which arose in the mind of the trial court, but with the belief that since it has been shown that the invention was used

in public at Iloilo by others than Vargas, the inventor, more than two years before the application for the patent, the patent is invalid.Although we have spent some time in arriving at this point, yet having reached it, the question in the case is single and can be brought to a narrow compass. Under the English Statute of Monopolies (21 Jac. Ch., 3), and under the United States Patent Act of February 21, 1793, later amended to be as herein quoted, it was always the rule, as stated by Lord Coke, Justice Story and other authorities, that to entitle a man to a patent, the invention must be new to the world. (Pennock and Sellers vs. Dialogue [1829], 2 Pet., 1.) As said by the United States Supreme Court, "it has been repeatedly held by this court that a single instance of public use of the invention by a patentee for more than two years before the date of his application for his patent will be fatal to the validity of the patent when issued." (Worley vs. Lower Tobacco Co .[1882], 104 U. S., 340; McClurg vs. Kingsland [1843], I How., 202; Consolidated Fruit Jar Co. vs. Wright [1877], 94 U. S., 92; Egbert vs. Lippmann [1881], 104 U. S., 333; Coffin vs. Ogden [1874], 18 Wall., 120; Manning vs. Cape Ann Isinglass and Glue Co. [1883], 108 U. S., 462; Andrews vs. Hovey [1887], 123 U. S., 267; Campbell vs. City of New York [1881], 1 L. R. A., 48.)On the facts, we think the testimony shows such a public use of the Vargas plow as to render the patent invalid Nicolas Roces, a farmer, testified that he had bought twenty Vargas plows, of which Exhibit 5 was one, in December, 1907; and Exhibit 5, the court found, was a plow completely identical with that for which the plaintiff had received a patent. The minor exception, and this in itself corroborative of Roces' testimony, is that the handle of plow Exhibit 5 is marked with the letters "A V" and not with the words "Patent Applied For" or "Patented Mar.12, 1912." Salvador Lizarraga, a clerk in a business house, testified that he had received plows similar to Exhibits D, 5, and 4, for sale on commission on May, 1908, from Bonifacio Araneta, partner of Vargas in the plow business. Ko Pao Ko, a blacksmith, testified that he had made fifty plow frames in 1905 for Vargas and Araneta, of which Exhibit 4 is one; Exhibit 4, the court found, is a plow identical with that patented by Vargas, but without share and mould-board. Alfred Berwin, an employee in the office of Attorney John Bordman, testified that on September 21, 1908, he had knowledge of a transaction wherein Vargas and Araneta desired to obtain money to invest in a plow factory. George Ramon Saul, a mechanic of the "Taller Visayas" of Strachan and MacMurray, testified that he had made Vargas plow points and shares of the present form upon order of Araneta and Vargas in 1906 and 1907 .William MacMurray, proprietor of the "Taller Visayas," corroborated the evidence of the witness Saul by the exhibition of the account against Vargas and Araneta wherein, under date of December 13, 1906, appears the item "12 new soft steel plow shares forged and bored for rivets as per sample." Against all this, was the testimony of the plaintiff Angel Vargas who denied that Saul could have been seen the Vargas plow in 1907 and 1907, who

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denied that Roces purchased the Vargas plow in 1907, who denied that Lizarraga could have acted as an agent to sell two plows in November, 1908, who denied any remembrance of the loan mentioned by Berwin as having been negotiated in September, 1908, who denied that Ko Pao Ko made fifty plows one of which is Exhibit 4, for Araneta and Vargas in 1905. Plaintiff introduced his books to substantiate his oral testimony .It is hardly believable that five or six witnesses for the defense would deliberately perjure themselves under oath. One might, but that all together, of different nationalities, would enter into such a conspiracy, is to suppose the improbable.Tested by the principles which go to make the law, we think a preponderance of the evidence is to the effect that for more than two years before the application for the original letters patent, or before July 22, 1908, there was, by the consent and allowance of Vargas, a public use of the invention covered by them.To conclude, we are not certain but that appellee has proved every one of his defenses. We are certain that he has at least demonstrated the public use of the Vargas plow over two years prior to the application for a patent. Such being the case, although on a different ground, we must sustain the judgment of the lower court, without prejudice to the determination of the damages resulting from the granting of the injunction, with the costs of this instance against the appellant. So ordered.Arellano, C.J. Torres, Johnson, Araullo, Street, Avanceña and Moir, JJ., concur.

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