Indian Kanoon - Search engine for Indian Law

Delhi High Court

Sterlite Technologies Limited vs Ztt India Private Limited on 31 May, 2019

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

$~3.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(COMM) 314/2019, IA No.8386/2019 (u/O XXXIX R-1&2 CPC),
     IA No.8389/2019 (u/O XXVI R-4,9&10) & IA No.8390/2019 [u/O XI
     R-1(6)]
     STERLITE TECHNOLOGIES LIMITED                      ..... Plaintiff
                      Through: Mr. Pravin Anand, Ms. Archana
                                  Shankar, Ms. Prachi Agarwal and
                                  Ms.Ridhie Bajaj, Advs.
                               versus
     ZTT INDIA PRIVATE LIMITED                        ..... Defendant
                      Through: None.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                      ORDER

% 31.05.2019 IA No.8387/2019 (under Order XI Rule 1(4) for filing additional documents).

1. The application is disposed of by permitting the plaintiff to file additional documents latest along with the replication if any filed to the written statement of the defendant.

2. The application is disposed of.

IA No.8388/2019 (for exemption).

3. Allowed, subject to just exceptions.

4. The application stands disposed of.

CS(COMM) 314/2019, IA No.8386/2019 (u/O XXXIX R-1&2 CPC), IA No.8389/2019 (u/O XXVI R-4,9&10) & IA No.8390/2019 [u/O XI R- 1(6)].

5. The plaintiff has sued for permanent injunction restraining infringement of IN 241433 and/or IN 280211 by the defendant.

6. The counsel for the plaintiff, at the outset points out that the plaintiff, at Page 46 of Part III-A file, has filed a document which is not part of the specifications in the claim of the patent and which is till Page 45, and Page 46 has been filed only for clarification to the Court.

7. The counsel for the plaintiff has argued that the subject patents are method patents and the optical fibre being marketed by the defendant has the same technical parameters as of the optical fibre of the plaintiff produced with the patented technology. The plaintiff in this context relies upon a report of test got conducted by the plaintiff, at Page 99 of Part III-A file. It is argued that the said technical parameters cannot be achieved without use of patented technology.

8. Issue summons of the suit and notice of the applications to the defendant by all modes including dasti and electronic, returnable on 3rd July, 2019.

9. At this stage, it is not possible to form an opinion, even prima facie.

10. Considering, that the life of a patent is limited and further considering the time taken in determination, whether there is infringement of patent, non grant of interim injunction often results in, the defendant, even if ultimately found to have infringed the patent, till the said determination, continuing to reap fruits of infringement. The price at which the infringer is able to market is often considerably lower than the price at which innovator is able to market, because of the cost of innovation built into it. The innovator, being so driven out of the market, is thus, till the determination, deprived of the fruits of the innovation.

11. I have thus considered, what appropriate interim arrangement, balancing the rights of both, can be made.

12. The defendant in such a suit has the defences of denial of infringement by proving its product/process to be different or challenging the validity of patent.

13. If the defence is of denial of infringement and the defendant proves such defence, the interim order of restraint against infringement will not cause any harm to the defendant.

14. If the defence is of invalidity of the patent, then also the interim order can be made subject to the condition that on the defendant establishing invalidity, no consequences of violation of the interim order restraining infringement shall follow, again ensuring no harm to the defendant.

15. On the contrary, on the defendant failing in its defence, whatever it may be - whether of denial of infringement or of invalidity, grant of interim relief restraining infringement shall entitle the plaintiff, in the event of defendant not complying with the interim order, besides the reliefs claimed in the suit, also to consequences of violation of interim order by the defendant. This, in my view will fully compensate the plaintiff for infringement of patent and will be in enforcement of rights of patents and encourage and give impetus to innovation.

16. I say so because, a patentee, even after succeeding in the suit, in the absence of any interim order, is entitled only to profits earned by the defendant and which do not reflect the profits which the plaintiff would have earned if there had been no infringement. As aforesaid, the infringer is able CS(COMM) 314/2019 Page 3 of 4 to market at a much lower price, resulting in earning far less profits that which the patentee would have earned if there had been no infringement. The patentee would then also be entitled to punitive action against defendant for violation of the interim order.

17. Such arrangement, in my view, will also ensure that suits for infringement are not contested, only to take advantage of and to reap the fruits of delays in Court process, inspite of defendant in its heart knowing the truth. Each defendant, in its heart knows the truth and if inspite of knowing that it is in infringement, violates the interim order, will, besides taking the risk of financial liability, also run the risk of penal consequences. This will also ensure purity of the Court process.

18. This experimentation, with interim orders in patent infringement suits, is the need of the hour.

19. The defendant, till the next date of hearing, is restrained from infringing IN 241433 and/or IN 280211 of the plaintiff.

20. The said interim order is in terms of above.

21. The provisions of Order XXXIX Rule 3 of the CPC be complied forthwith.

Dasti under signatures of Court Master.

RAJIV SAHAI ENDLAW, J MAY 31, 2019 'pp'..