Sterlite Technologies Limited vs Hfcl Limited on 14 September, 2022

[Cites 4, Cited by 0]

Delhi High Court

Sterlite Technologies Limited vs Hfcl Limited on 14 September, 2022

1. The present is a suit filed by the Plaintiff- Sterlite Technologies Ltd. - seeking inter alia, an injunction restraining infringement of Indian Patent No. IN335369 (hereinafter "IN'69/suit patent") which relates to optical fiber cables (hereinafter "OFCs"). The Plaintiff claims to be an industry leading integrator of digital networks providing integrated 5G ready end to end solutions ranging from wired to wireless, design to deployment connectivity to compute through core capabilities in Optical Interconnect, Virtualised Access Solutions, Network Software and System Integration. The Plaintiff company was established in the year 1988 as a copper cable manufacturing unit and thereafter in 1993 developed CS (COMM) 19/2022 Page 1 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 optical fiber manufacturing capabilities. The Plaintiff avers that it is engaged in the business of telecom products and solutions, including manufacture and sale of integrated optical fibers and OFCs and also provides cloud computing services. As per the plaint, the Plaintiff has manufacturing facilities in India, China, and Brazil, and software development centers in India and U.K. The Plaintiff's revenue as of the financial year 2020, is stated to be around Rs. 41,420 million, with offices in 16 countries and 7 global production facilities. The detailed profile of the Plaintiff has been set out in the plaint.

2. The suit patent titled 'OPTICAL FIBER CABLE FOR BLOWING INTO DUCT', has a priority date of 29th March, 2016 and was granted on 20th March, 2020 with the following Claims:

"1. An optical fiber cable (100) comprising:

one or more sleeve stranded around a central strength member (102), wherein each of the one or more sleeve encloses 16 optical fibers, wherein each of the optical fibers has a diameter of about 250 microns; a layer (l08) surrounding the one or more sleeve, wherein the one or more sleeve comprises one or more optical fiber, wherein the layer (108) is one or more strengthening layer acting as a binding element for the one or more optical fiber; and an outer sheath enclosing the layer (l08), wherein the optical fiber cable (100) has a nominal weight in a range of 2 kg/km and 250 kg/km and a nominal diameter in a range of 1.5 mm and 20 mm.

2. The optical fiber cable (100) as claimed in claim 1, comprising one or more central strength member (102) lying substantially along a longitudinal axis of the optical fiber cable (100), wherein the one or CS (COMM) 19/2022 Page 2 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 more central strength member (l02) has a diameter in a range of 0.5 mm to 6mm.

3. The optical fiber cable (100) as claimed in claim 1, wherein the layer (108) is a binder yarn, and yarn thread, and wherein the layer (108) is made of polyester, aramid, polypropylene and a water blocking material, wherein said layer (108) facilitates absorption of water and moisture in the optical fiber cable (100).

4. The optical fiber cable (100) as claimed in claim 1, wherein a tensile strength of the optical fiber cable (100) in a range of 10 N to 2000N.

5. The optical fiber cable (100) as claimed in claim 1, wherein a number of fibers in the optical fiber cable (100) is up to 288.

6. The optical fiber cable (100) as claimed in claim 1, wherein the outer sheath is made of polyamides, polyethylene, polypropylene and Nylon, Low smoke zero halogen (LSZH) and Fire-Resistant Polyethylene (FRPE).

7. The optical fiber cable (100) as claimed in claim 1, wherein the one or more optical fibers and the one or more sleeves are colored.

8. The optical fiber cable (100) as claimed in claim 2, wherein the one or more central strength member is made of one of a metallic or non-metallic fiber reinforced plastic, and Aramid Reinforcement Plastic 15 (ARP) rod.

9. The optical fiber cable (100) as claimed in claim 1, wherein one or more ripcords (114) lie substantially along the longitudinal axis of the optical fiber cable (100) to facilitate stripping of the optical fiber cable (100).

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10. The optical fiber cable (100) as claimed in claim 1, wherein one or more water swellable yarns is positioned inside the optical fiber cable (100).

11. The optical fiber cable (100) as claimed in claim 1, wherein the optical fiber cable (100) is insect and termite resistance."

3. The case of the Plaintiff is that the Defendant- HFCL Limited, is a private limited company engaged in the business of manufacturing of telecommunication equipment, OFCs and intelligent power systems. In the first week of June 2021, the Plaintiff was informed by one of its customers that one of the Defendant's OFCs are similar to the OFCs of the Plaintiff. Thereafter, the Plaintiff came across the Defendant's website with brochures of the Defendant listing several products having substantial similarities to the Plaintiff's OFC. According to the Plaintiff, the said impugned OFCs of the Defendant violated the Plaintiff's exclusive rights granted under the suit patent.

4. The Plaintiff then filed the present suit seeking permanent injunction restraining infringement of the suit patent, and consequential reliefs including rendition of accounts, damages, delivery up, etc. An ex-parte ad-interim injunction was granted vide order dated 12th January, 2022. Thereafter, the Defendant filed an application seeking vacation of the injunction, being I.A. 1334/2022, along with its written statement and its counter-claim being CC No.11/2022 seeking revocation of the suit patent. Arguments have been heard in the two applications i.e., seeking interim injunction under Order 39 Rules 1 & 2 CPC being I.A.504/2022, and for vacation of ex-parte injunction under Order 39 Rule 4 CPC being I.A. 1334/2022.

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SUBMISSIONS

5. Submissions have been made by Mr. Chander M. Lall, ld. Sr. Counsel, appearing on behalf of the Plaintiff and Mr. Amit Sibal, ld. Sr. Counsel, on behalf of the Defendant. Mr. Lall relies upon the Plaintiff's patent specification of IN'369 and the Claims therein to establish the novelty and inventive step involved in the suit patent and that there is infringement of the same. He makes the following submissions in this regard:

5.1 At the outset, the suit patent has been granted in respect of a novel and inventive OFC, which has specific elements as described in Claim 1. The said elements are:

5.1.1. One or more sleeves which are stranded around a central strength member (hereinafter "CSM");

5.1.2. The said sleeve(s) encloses 16 optical fibers, this number of 16 fibers is merely illustrative in nature; 5.1.3. An outer diameter of about 250 microns; 5.1.4. A layer surrounding the sleeve(s) wherein one or more sleeve comprises of one or more optical fiber(s); 5.1.5. The layer acts as a strengthening layer and as a binding element for one or more optical fiber;

5.1.6. The outer sheath enclosing the layer; 5.1.7. The said OFC described in the above form has a nominal weight in the range of 2 kg/km and 250 kg/km and a nominal diameter in the range of 1.5 mm to 20 mm.

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5.2 In so far as novelty and inventive step are concerned, the core of the Plaintiff's invention is in the strengthening layer, which is used for binding the optical fibers. According to the Plaintiff, the strengthening and binding layer enables increase in tensile strength without a significant change in weight, diameter or construction of the OFC, and the claim ought to be read as a whole. In this regard, the following submissions are made: 5.2.1. This binding and strengthening feature of the OFC arises out of the Plaintiff's use of an aramid yarn. This was specifically done to increase longevity, provide better binding, and a lighter/thinner/slimmer OFC occupying less space, without compromising the strength of the OFC. In prior art, polyester yarn was used to bind a plurality of optical fibers, which had the disadvantage of snapping at the time OFCs are blown through a pipe and pulled.

5.2.2. The manner in which the aramid yard is used i.e., not in a longitudinal manner but in a binding manner, to provide strength to the OFC is also an innovative feature.

5.2.3. There is no prior art which has been cited by the Defendant which would hit the patentability of the suit patent. 5.3 In so far as the issue of infringement is concerned, Mr. Lall, ld. Sr. Counsel, submits that contrary to the Defendant's submission, the novelty does not lie in the number of optical fibers which are enclosed in the sleeve. He further urges as under:

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5.3.1. The mention of 16 optical fibers in Claim 1 is merely illustrative and exemplary. This is clear from a reading of various paragraphs of the patent specification including paragraphs [0028], [0029], [0033] and [0054]. In the subsequent lines of Claim 1, the terminology used is "one or more optical fibers". Reliance is also placed upon the state of the art described in paragraphs [0003] and [0007] of the specification which sets out advantages of the suit patent over the prior art i.e., reduced weight and better blowing performance.

5.3.2. The mere difference in the number of optical fibers in the impugned OFC, would not excuse a finding of infringement. The principle of equivalence would have to be applied and if the number 16 is not the key element but the aramid yarn and the manner in which it is wrapped and the advantages that it achieves are the actual innovative elements of the Plaintiff, then the Plaintiff would be entitled to be protected qua a plurality of optical fibers.

6. On behalf of the Defendant, Mr. Amit Sibal, ld. Sr. Counsel, counters the plea of infringement and challenges the validity of the suit patent itself. He makes the following submissions:

6.1 First, on infringement, the main plank of the Defendant's argument is that the enclosing of 16 optical fibers is the key element of the Plaintiff's Claim 1 and if the optical fibers enclosed are not 16, i.e., either less or more than 16, then such an OFC would not infringe the suit patent. Since the CS (COMM) 19/2022 Page 7 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 Defendant's OFC has 12 fibers within the sleeve, the Defendant's product would not be infringing the suit patent.

6.2 In support of this contention, he further relies upon the fact that the Plaintiff had itself filed two patent applications bearing nos. 201621010853 (hereinafter "Sterlite Application No.1/SA1") and 2209/MUM/2015 (hereinafter "Sterlite Application No.2/SA2"), on 29th March, 2016 and on 9th June, 2015, respectively. Thereafter, during the pendency of these proceedings, after these applications were brought to the notice of the Court, SA2 was withdrawn by the Plaintiff by submitting a Request for Withdrawal of the Application for Patent on 21st July, 2022. Mr. Sibal, ld. Sr. Counsel, submits that in the specification of SA1, an almost identical patent has been sought for an OFC which consists of 24 optical fibers within each sleeve. The filing of this patent application on the same date as the suit patent shows that the distinction between the two specifications is only between the numbers 16 and 24. Thus, the specific mention of 16 fibers within a sleeve in the suit patent, is a deliberate and conscious act of the Plaintiff to distinguish itself from the prior art and its other applications on the basis of the number of fibers in the sleeve. Moreover, it is telling that the inventors in the suit patent and in these two applications are also common.

6.3 Second, in so far as the Plaintiff's submissions that its OFC is lighter and provides better blowing performance are concerned, the distinction in weight and diameter is rendered completely irrelevant in view of the fact that the 'as filed' Claims in the suit patent, were amended to make the suit CS (COMM) 19/2022 Page 8 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 patent applicable to OFCs with a weight in the range of 2 kg per km and 250 kg per km and a diameter ranging between 1.5 mm and 20 mm. The range by itself clearly takes away the advantage which the Plaintiff seeks to establish before this Court, as it so large that it does not allow for establishing lightness of the OFC.

6.4 Third, reliance is placed upon prior art to challenge the validity of the suit patent. The suit patent is liable to be revoked due to lack of novelty and inventive step. The priority date of the suit patent being 29 th March, 2016, the following prior art documents are relied upon:

6.4.1. PD1: Specification dated 4th March, 2013 provided by Reliance Jio Infocomm Limited (hereinafter "RJIL") titled 'Multi-loose tube Single sheath, Micro-cable' bearing Document No.10070-40-EF-

PSS-PR-028 (hereinafter "RJIL OFC"):

• This document consists of the specification of the RJIL OFC for which supplies were sought by RJIL from the Defendant. An identical OFC was contemplated as per this specification, which has all the elements of the Claims in the suit patent. Pursuant to this product specification, the Defendant made supplies to RJIL and there are contemporaneous documents which support this plea, including a purchase order invoice dated 5th December, 2013, being Purchase Order No.152/63005654 and an affidavit given by RJIL that such OFCs were supplied to them by the Defendant in 2015 as well.

• Each of the elements in Claim 1 of the suit patent and the figure depicted in the specification of the RJIL OFC at page 13, match CS (COMM) 19/2022 Page 9 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 with each other. Illustratively, Figure 1A attached to the suit patent's specification is also referred, to match the suit patent to the RJIL OFC.

• The only difference is in the number of optical fibers which are enclosed in one sleeve. In the RJIL OFC, the number of optical fibers in each tube ranges between 2 to 12, whereas in Claim 1 of the suit patent, the same is described as 16 optical fibers. Thus, the use of the number 16 is neither accidental nor a typographical error and was a device of the Plaintiff merely to distinguish the OFC in the suit patent from the prior art already existing in the market. • Further reliance is placed upon the aramid yarn cross binding feature in the RJIL OFC, the diameter of the RJIL OFC, which is 245 ± 5 (at point 6 under the column titled G652D) and the other elements being the CSM and the sleeve. The feature of 250 microns is mapped to paragraph [0009] of the specification of the suit patent, showing that the same is the diameter of the Plaintiff's OFC as well.

• A sample of the physical OFC has been produced before Court. • As per the Defendant, this one document is sufficient to destroy the novelty of the suit patent. In any event, he relies upon some further documents.

6.4.2. PD2: Gigacom Air Blown Micro Cable- SC S12 dated 18th September, 2015 (hereinafter "Gigacom OFC"):

• The Gigacom OFC discloses an almost identical OFC with 12 fibers in a particular sleeve.

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• The yarn used for binding in the Gigacom OFC is made of Kevlar/Twaron, both of which are also aramid materials. • The figure of the Gigacom OFC is identical to the Plaintiff's OFC at Fig. 1A.

6.5. Fourth, reliance is placed upon the fact that one of these prior art documents have been referred to by the European Patent Office (hereinafter "EPO") in its decision dated 9th November, 2021 to reject the patent application for the Plaintiff's corresponding patent in Europe bearing Application No.16 176 636.5-1001. The said decision relies upon three documents i.e., D1 (US 8 582 942 B1, i.e., Burnett Julie Anne [US] dated 12 November, 2013), D2 (WO 2015/055229 A1 i.e., Prysmian Spa [IT] dated 23rd April, 2015) and D3 (Gigacom OFC), out of which as per the EPO, D1 discloses all the elements of the suit patent, except the outer diameter and the weight. In so far as these two elements are concerned, the EPO locates them in D3 i.e., the Gigacom brochure, to hold that a conjoint reading of D1 and D3 would result in holding that the corresponding European patent is lacking in inventive step. Accordingly, he submits that since the EPO has prima facie come to the conclusion that the Plaintiff's corresponding patent lacks inventive step, on the strength of published patent document D1 with the Gigacom OFC, the suit patent cannot be held to be novel and inventive.

7. On the strength of these documents, it is argued that the Defendant's product is non-infringing and the suit patent being prima facie invalid, the injunction deserves to be vacated.

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8. In rejoinder, Mr. Lall, ld. Sr. Counsel, submits as under:

8.1 He first highlights two features of the Plaintiff's OFC as being novel. 8.2 First, that there is a water-soluble yarn which is meant to absorb water seepage. The aramid yarn is generally not used as a binding yarn because aramid becomes rigid once it is wet. Therefore, in the prior art, aramid yarn could not have been used as a binding layer. 8.3 Second, there are ripcords which are above the binding and strengthening aramid yarn. The said ripcords are used for ripping the plastic sheet covering the OFC, in order to enable opening of the cable if the need so arises. The ripcord is to be located above the binding layer (if the layer is helical), else pulling the ripcord would make the cable fall apart. However, if the aramid layer is longitudinal (which means it is only being used as a strengthening layer), the ripcord could be placed in any direction.

Therefore, if the Plaintiff can show that the ripcord in the prior art was placed inside the aramid layer, it would mean that aramid yarn in such cables has only been used longitudinally as a strengthening layer alone. To show this, it is submitted as below:

8.3.1. In the RJIL OFC, there is no reference to the aramid cross binding.

It is only a strengthening layer. Moreover, the said document is a self-serving document as RJIL owns some stake in HFCL. 8.3.2. In the Gigacom OFC, the ripcord is inside the aramid layer, which is straight and not binding.

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8.4 In so far as the other prior art cited by the Defendant is concerned, in the application under Order XXXIX Rule 4 CPC, several prior arts are relied upon, however mosaicing is not permitted. He highlights that the EPO categorized the Gigacom OFC as belonging to category A i.e., it gives the "technological background", not as a "most relevant prior art". 8.5 Insofar as the two applications of the Plaintiff itself are concerned, SA1 was filed on 29th March, 2016, which is the same date as the suit patent and thus cannot constitute prior art. SA2 was filed on 9 th June, 2015 and was not published. It was only published on 16th December, 2016. In both these patent applications, there is no reference to a binding layer. Further, it is argued by ld. Sr. Counsel for the Plaintiff that while prior claiming could be a ground for opposition proceedings under Section 25 of the Patents Act, 1970 (hereinafter "Patents Act"), the same cannot be a ground under Section 64 for the revocation/invalidity of the suit patent, as SA1 had not been granted.

ANALYSIS AND FINDINGS

9. The present suit for patent infringement of IN'69 relates to OFCs.

10. It is a known fact that OFCs are used to transfer data signals with high bandwidth. The speed and quantum of data that can be transmitted through OFCs is much higher than traditional electrical communications cables. OFCs are used for long-distance transmission globally. These cables can transfer data over several hundreds of kilometers and form the backbone of almost all global communications. OFCs can withstand the vagaries of weather and are even CS (COMM) 19/2022 Page 13 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 installed under ocean, thereby enabling communication even between continents. Thus, OFCs are known in the art for several years.

11. In the present suit, vide order dated 12th January, 2022, on the basis of the suit patent and the case made out by the Plaintiff, an ex parte ad interim injunction was granted in the following terms:

"21. Till the next date of hearing, the defendant, its subsidiaries, directors, servants, agents, licensee or any related/ parent companies, dealers, stockists and distributors and/or anyone claiming any right through any of them, restraining them, jointly and severally, in any manner, from making, manufacturing, using, offering for sale, selling, exporting and importing the optical fibers covered under the Subject Patent no. IN 335369 in India, as may amount to infringement of the Subject Patent No. 335369 of the Plaintiff."

12. A Local Commissioner was also appointed vide the above order, to visit the premises of the Defendant. Thereafter, the Defendant moved an application under Order XXXIX Rule 4 CPC raising various grounds of challenge. One of the main grounds raised, was that the OFCs produced and sold by the Defendant do not infringe the suit patent as the suit patent only relates to an OFC having 16 optical fibers in one sleeve, whereas the Defendant's product has 12 optical fibers in one sleeve. The matter was thereafter heard from time to time.

13. On 14th March, 2022, an application moved by the Defendant was considered, wherein the Defendant sought permission to honour some purchase orders - which they had received from various customers based out of Germany, U.K. Dubai, etc. - for various OFCs, including the impugned OFCs. Since the CS (COMM) 19/2022 Page 14 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 hearing on the said date was inconclusive and for the reasons stated in the said order, the Defendant was permitted to service the purchase orders which were placed on them. The operative portion of the said order dated 14th March, 2022, reads as under:

"7. As per the plaint, the cause of action arose sometime in September, 2021 and the suit itself was filed in December, 2021, while the interim order was granted on 12th January, 2022. The Defendant has handed over a chart of pending orders of micro cables from purchasers in Germany, UK, Dubai, etc. The total value of these purchase orders is stated to be Rs.5131.2 lakhs, out of which as per the chart given by the Defendant, the impugned products are stated to be to the tune of Rs.2426.6 lakhs. However, the Defendant submits that since some of these are composite orders of injuncted and non-injuncted products, they are unable to service the purchase orders amounting to Rs.5131.2 lakhs, in view of the injunction order.

8. Keeping the above in mind, the following directions are issued:

(i) Since all these purchase orders relate to November, December, January and February and only one purchase order is of 4th March, 2022 and since the hearing is inconclusive, at this stage, the Defendant is permitted to supply to its customers the products as per these purchase orders only and file an affidavit to this effect confirming the supplies thereof and the exact date of the purchase orders, shipment, and place on record, supporting documents and the statement of accounts, etc. in this regard, within two weeks. If the same contain any CS (COMM) 19/2022 Page 15 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 commercially confidentially information, the documents may be filed in a sealed cover.

(ii) No further sales would, however, be made of the injuncted products until further orders of this Court. The injunction as granted on 12th January, 2022 shall continue, subject to the above, till the next date of hearing."

14. The Defendant again sought permission to honour further purchase orders vide I. A. 6233/2022 on 25th April 2022. On the said date, the following order was passed:

"7. The Court has perused the application which reveals that out of the total purchase orders which has been placed by the Defendant's customers on the Defendant, some portion of the purchase order relates to the impugned products i.e., cables in the present case. The total sale value of these purchase orders is to the tune of Rs.44,31,70, 111/- out of which the impugned products constitute a sum of Rs. 16,79,52,486/-. Since these are composite orders and not honouring the same could cause business loss and loss of customers to the Defendant, and the matter is still part-heard, now listed on 8th July, 2022 for further hearing, it is deemed appropriate to allow the supplies subject to conditions. It is accordingly directed that the Defendant shall deposit a sum of INR 2 crores with the Registrar General of this Court, within four weeks from today, subject to which purchase orders 1 to 15 at paragraph 4 of the application, are permitted to be honoured and the supplies shall be made in respect thereof. In this regard, paragraph 8(i) of the order dated 14th March, 2022 shall apply mutatis mutandis to the present application.

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8. The said amount of INR 2 crores be retained in an FDR in auto renewal mode."

15. On 1st August, 2022, submissions in the applications seeking interim injunction and vacation of injunction were concluded and orders in the applications were reserved. On the said date, further supplies were permitted to be made pursuant to I.A. 10557/2022, subject to a deposit of Rs.3 crores. The said order dated 1st August, 2022, reads as under:

"11. Accordingly, subject to deposit of Rs.3 crores by the Defendant within four weeks, the purchase orders mentioned in I.A. 10557/2022 are permitted to be honoured and supplies may be made by the Defendant in this regard. A proper affidavit giving details of the actual sales values shall be placed on record within a period of eight weeks.

...

19. It is also made clear that any supplies made and deposits made pursuant to I.A. 6223/2022 and I.A. 10557/2022 are subject to final orders being passed in this application under Order XXXIX Rule 1 and 2 CPC."

A. Suit Patent

16. As per the prior art, it is the Plaintiff's case that earlier OFCs were of bigger diameter and required large ducts for installation. The said OFCs were also heavy, leading to poor blowing performance. As per the suit patent, the object of the invention was to provide an OFC having a small diameter with reduced weight, which would lead to better blowing performance.

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17. The suit patent was filed on 29th March, 2016 and was granted on 20th March 2020, with the following Claims:

"1. An optical fiber cable (100) comprising: one or more sleeve stranded around a central strength member (102), wherein each of the one or more sleeve encloses 16 optical fibers, wherein each of the optical fibers has a diameter of about 250 microns; a layer (l08) surrounding the one or more sleeve, wherein the one or more sleeve comprises one or more optical fiber, wherein the layer (108) is one or more strengthening layer acting as a binding element for the one or more optical fiber; and an outer sheath enclosing the layer (l08), wherein the optical fiber cable (100) has a nominal weight in a range of 2 kg/km and 250 kg/km and a nominal diameter in a range of 1.5 mm and 20 mm.

2. The optical fiber cable (100) as claimed in claim 1, comprising one or more central strength member (102) lying substantially along a longitudinal axis of the optical fiber cable (100), wherein the one or more central strength member (l02) has a diameter in a range of 0.5 mm to 6mm.

3. The optical fiber cable (100) as claimed in claim 1, wherein the layer (108) is a binder yarn, and yarn thread, and wherein the layer (108) is made of polyester, aramid, polypropylene and a water blocking material, wherein said layer (108) facilitates absorption of water and moisture in the optical fiber cable (100).

4. The optical fiber cable (100) as claimed in claim 1, wherein a tensile strength of the optical fiber cable (100) in a range of 10 N to 2000N.

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5. The optical fiber cable (100) as claimed in claim 1, wherein a number of fibers in the optical fiber cable (100) is up to 288.

6. The optical fiber cable (100) as claimed in claim 1, wherein the outer sheath is made of polyamides, polyethylene, polypropylene and Nylon, Low smoke zero halogen (LSZH) and Fire-Resistant Polyethylene (FRPE).

7. The optical fiber cable (100) as claimed in claim 1, wherein the one or more optical fibers and the one or more sleeves are colored.

8. The optical fiber cable (100) as claimed in claim 2, wherein the one or more central strength member is made of one of a metallic or non-metallic fiber reinforced plastic, and Aramid Reinforcement Plastic 15 (ARP) rod.

9. The optical fiber cable (100) as claimed in claim 1, wherein one or more ripcords (114) lie substantially along the longitudinal axis of the optical fiber cable (100) to facilitate stripping of the optical fiber cable (100).

10. The optical fiber cable (100) as claimed in claim 1, wherein one or more water swellable yarns is positioned inside the optical fiber cable (100).

11. The optical fiber cable (100) as claimed in claim 1, wherein the optical fiber cable (100) is insect and termite resistance."

18. Notably, there is some confusion as to the use of the terminology by the Plaintiff, both in their submissions as also in the suit patent. Both the terms 'optical fiber' and 'buffer tubes' are used to explain what the binding yarn actually binds. It is clarified that the term 'optical fiber' relates to the fibers within the buffer tubes. The said tubes enclose the optical fibers. The binding CS (COMM) 19/2022 Page 19 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 yarn is wound over the 'buffer tubes' as shown in Fig. 1A. The scheme of the product is thus as under:

18.1 Inner most - Optical fibers 18.2 Buffer tubes enclosing the optical fiber 18.3 Binding yarn wound over the buffer tubes

19. With this understanding, the novel and inventive feature as pleaded by the Plaintiff is the existence of a strengthening and binding yarn to protect the buffer tubes (which are also termed as 'sleeves' in the Claims of the suit patent). As per the written submissions of the Plaintiff, the inventive feature in the suit patent is as under:

"10. IN'369 overcomes above-mentioned disadvantages of the prior art. IN'369 provides an improved optical fiber microcable where a strengthening layer acts as a binding element to bind the stranded loose tubes around a central strength member in order to improve the cable's tensile strength without adversely affecting the weight or diameter of the micro cable.

11. Thus, the strengthening layer acting as a binding element is a single layer that (i) binds the stranded loose tubes and (ii) imparts additional tensile strength to the cable, without changing any other physical attributes e.e. size and weight. The optical fiber cable is thus able to withstand more push or pull force during installation in small ducts, improving blowing performance of the optical fiber cable."

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B. Analysis of the Suit Patent and Prior Arts

20. The grounds raised by the Defendant for seeking vacation of the interim injunction, as captured in the submissions above are twofold:

20.1 That the main Claim of the suit patent contemplates 16 optical fibers being enclosed in a sleeve and novelty resides in the said number of optical fibers. Since the Defendant manufactures and sells OFCs which have 12 optical fibers, there is no infringement. In support of this, two other patent applications filed by the Plaintiff i.e., SA1 and SA2, are relied upon by the Defendant.

20.2 That in view of the prior art, the suit patent lacks novelty and inventive step and is therefore, prima facie invalid. In support of this, though several documents have been cited in the pleadings, the focus of the submissions at the interim stage has been on the following two documents:

19.2.1. RJIL OFC; and 19.2.2. Gigacom OFC.

20.3 Since only these two documents are being used as prior art at this stage, this Court, at the outset, holds that the Plaintiff's claim of mosaicing lacks merit. The objection of 'mosaicing' would normally apply when completely unconnected documents are presented in a combination to defeat the inventive step in the invention. However, the argument of mosaicing cannot be sustained when there are only two documents used as prior art and such documents are interconnected or disclose similar products. When multiple documents are alleged to disclose substantially CS (COMM) 19/2022 Page 21 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 similar products to the patented product, then the same is a reflection of the state of the art and not 'mosaicing'.

21. Thus, considering the nature of the documents cited by the Defendant which are only two in number, and the allegation that OFCs with similar features were existing in the prior art, the said documents would deserve to be seen for considering the submission on invalidity of the suit patent. The said two documents are analysed below:

21.1. RJIL OFC:

21.1.1. At the outset, objections have been raised in respect of entertaining this document as it is submitted that the same is a self-serving document, since RJIL has a stake in the Defendant-HFCL. 21.1.2. The Court has perused the document in question. The same is a product specification of an OFC described as a 'Multi-Loose Tube Single Sheath, Micro-Cable with a specific Document No. 10070-

40-EF-PSS-PR -028'. The same bears the date of 4th March 2013 and signatures of six individuals who are stated to have prepared, reviewed, approved, and issued the said document. The document itself is extremely detailed and calls for bids to be submitted by prospective bidders who wish to supply OFCs. The scope of the document reads as under:

"The purpose of this document is to define the minimum requirements of design, engineering, manufacturing, inspection, testing and documentation of Micro- optical fiber cable, in multi-loose tube design, Single CS (COMM) 19/2022 Page 22 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 sheath suitable for blowing into microducts. The micro-optical fiber cable is required for feeder and distribution applications to build RJIL-4G FTTx Network."

21.1.3. It references various codes and international standards that apply for the design, material to be used, constructions and performance of OFCs. The latest ITU standards are also referenced. It is a document of 31 pages including various forms to be filed by the prospective bidders. At the prima facie stage, this Court is unable to accept the submissions on behalf of the Plaintiff that the said document was not published contemporaneously in 2013. 21.1.4. Thus, the objection as to the self-serving nature of the documents is rejected at the prima facie stage and the said document is treated as valid prior art for contesting the validity of the suit patent. 21.1.5. Having considered this objection, the Court proceeds to consider the submissions relating to the RJIL OFC.

21.1.6. The RJIL OFC specification bears the date of 4th March, 2013. The date of filing of the suit patent is 29th March, 2016. Hence, the document cited would be valid prior art.

21.1.7. It is averred that the OFC in the suit patent differs from the RJIL OFC in the following manner:

"25. It is submitted that disclosure of RJIL document does not read on to the claims of IN'369 for at-least the following reasons:

• Cable of RJIL document has an aramid cross binding provided between a water CS (COMM) 19/2022 Page 23 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 blocking tape and outer sheath and thus the aramid strength member is not a strengthening layer acting as a binding element. RJIL has no disclosure or even suggestion regarding a layer surrounding the one or more sleeve, wherein the layer is one or more strengthening layer acting as a binding element.

• The cable of IN'369 has one or more water swellable yarns inside the optical fiber cable positioned between the one or more buffer tubes. Cable of RJIL document in contrast has a water blocking tape wrapped around the tubes which is different from providing water swellable yarns positioned between the one or more buffer tubes.

• Further, although there is discussion on strength member in paragraph 5.4 of RJIL document there is no teaching or suggestion as to how aramid is cross binding to act as strength member. Paragraph 5.4 simply states that FRP rod is a central strength member and to provide additional strength. aramid/glass yarn shall be used in addition to central strength member in the periphery. Aramid in D1 is thus a peripheral strength member - longitudinal.

• Further, as per paragraph 5.5 of RJIL document which relates to core wrapping and moisture protection, main cable core (containing loose tubes stranded around Central strength member) shall be wrapped by a layers) of super-absorbant water swellable tape / yarns. Core (loose tubes stranded around Central strength member) CS (COMM) 19/2022 Page 24 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 is thus wrapped by a tape and not a strength layer as binding element.

• Furthermore as per paragraph 5.8 of RJIL document, Rip cord under the HDPE sheath shall be readily distinguishable from any other components (e.g., Aramid yarns, etc.) utilized in the construction of the cable. This implies that aramid is longitudinal/parallel with the rip cord. If aramid would be used for binding it would already be distinguishable as it would be wrapped around the core and not parallel with the rip cord."

21.1.8. A perusal of the RJIL OFC specification discloses a schematic arrangement of the OFC in the following manner:

Fig. 1 CS (COMM) 19/2022 Page 25 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 21.1.9. The construction and scheme of the OFC disclosed in this document consists of six basic features which are as under:

• Central Strength Member • Buffer tubes with thixotropic jelly inside • Fibers inside buffer tube • Aramid (yellow) yarn cross binding and a water blocking/swellable tape/yarn • Ripcord • Outer Sheath / Covering 21.2. Gigacom OFC:

21.2.1.The second prior art document relied upon by the Defendant is the brochure of the Gigacom OFC. This document was relied upon by the EPO in its decision on the Plaintiff's corresponding application to the suit patent.

21.2.2.This document is challenged by the Plaintiff on the ground that the authenticity of the said document cannot be ascertained. 21.2.3.Further, the Plaintiff claims that the document does not disclose a strengthening layer acting as the binding yarn surrounding one or more sleeve.

21.2.4.It is averred that the OFC in the suit patent differs from the Gigacom OFC in the following manner:

"19. It is submitted that disclosure of Gigacom Document does not read on to the CS (COMM) 19/2022 Page 26 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 claims of IN'369 for at-least the following reasons:

Gigacom Document has no disclosure or even suggestion regarding a layer surrounding the one or more sleeve, wherein the layer is one or more strengthening layer acting as a binding element.

In Gigacom Document, a water blocking Kevlar yarn surrounds the FRP, whereas in IN'369, one or more water swellable yarns are positioned inside the optical fiber cable positioned between the one or more buffer tubes. The water blocking yarn of Gigacom Document is thus different. Furthermore, a water blocking Kevlar yarn will be a rigid yarn and cannot provide binding.

In the Gigacom Document, the rip cord is shown under the water blocking yarn (surrounding the loose tubes). It is known that function of ripcord is to tear off outer sheath to function. Accordingly, for ripcord is to tear off outer sheath to function. Accordingly, for ripcord of Gigacom to function which is provided under the water blocking yarn, the ripcord has to go through or tear the water blocking yarn. For this, it is required that longitudinal yarns be provided to allow the ripcord to go through and tear the sheath. It is thus clear that the yarns around the tubes are placed longitudinally so that the yarns have gap in-between for ripcord to function and thus the yarns do not function as a strength layer acting as a binding element. In IN'369 the ripcord is provided between the strength layer and the outer sheath.

CS (COMM) 19/2022 Page 27 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

Further, the ranges disclosed in Gigacom Document are different and cannot be read on to the cable of IN'369 which is different from the cable of Gigacom Document."

21.2.5.The Gigacom OFC discloses the structure of an air blown fiber cable which is as under:

Fig. 2 21.2.6.Thus, the Gigacom document discloses an OFC with the following features:

• Fiber Reinforced Plastic - CSM • Polyethylene (black) lining • Water blocking yarn around the polyethylene lining • Buffer Tube with jelly inside • Fibers inside buffer tubes • Kevlar/Water blocking yarn around the set of buffer tubes CS (COMM) 19/2022 Page 28 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 • Ripcord • Outer Sheath

22. Considering these two prior art documents, the question that arises is whether the above two documents would destroy the validity of the suit patent. In this regard, this Court now turns to the features of the suit patent, as under:

22.1. The suit patent discloses an OFC which is diagrammatically represented as under, in Fig. 1A of the patent specification:

Fig. 1A 22.2. The description of the various features of the Plaintiff's OFC, as per the patent specification of the suit patent is as under:

• Central Strength Member (102) • Sleeves also known as buffer tubes (104a to 104f) • Fibers inside the tube (106) CS (COMM) 19/2022 Page 29 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 • Water Swellable Yarn (112a and 112b) • Strengthening and binding layer made of Polyester, Aramid, Polypropylene and a water blocking material (108) • Ripcord (114) • Outer Sheath (110)

23. As per the above features of the prior art and the Plaintiff's OFC, a comparative analysis of the product in the suit patent and the products disclosed in the Jio and Gigacom OFC documents would show that all the three OFCs which are disclosed, consist of:

23.1. A Central Strength Member;

23.2. All three OFCs contemplate buffer tubes, also known as sleeves within which optical fibers are located;

23.3. All three disclose the presence of jelly within the buffer tubes; 23.4. All the three OFCs have ripcords and an outer sheath; 23.5. The suit patent has water swellable yarns between various buffer tubes/sleeves. In the RJIL OFC, an aramid yarn is used for cross-binding of the buffer tubes along with a water blocking tape. The Gigacom OFC uses a polyethylene lining and water blocking yarn around the CSM; 23.6. The suit patent discloses a strengthening and a binding polyester, aramid or propylene layer and a water blocking material (Claims 1 and 3 read with no. 108 in Fig. 1A above). The Gigacom brochure discloses that the cable is cross-bound by a Kevlar/water blocking yarn.

24. On the basis of the above analysis, a comparison of the three disclosed products can be depicted as below:

CS (COMM) 19/2022 Page 30 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

                              Feature             Suit Patent                  RJIL OFC                Gigacom OFC

                          Pictorial
                          represent-
                          tation




                          Central        • Comprising Steel wire • Made            of      Fiber • Made of Glass Fiber
                          Strength         located internally to        Reinforced Plastic rod     Reinforced      Plastic
                          Member           provide tensile strength     [5.4, page 249]            (GRP) [Description,
                                           and stiffness to OFC for                                Page 1]
                                           facilitating       blowing • Aramid or Glass yarn
                                           [0012]                       in      addition     for
                                                                        additional      strength
                                         • CSM          made       of   [5.4, Page 249]
                                           Metallic/Non-Metallic
                                           Fiber Reinforced Plastic
                                           or Aramid Reinforced
                                           Plastic (Claim 8, [0013])

Buffer tubes • Stranded in S-Z fashion • Loose tubes stranded • SZ wounded tube around CSM [0017] around fiber reinforced stranding [Description, plastic CSM [5.3, Page Page 1] 247] • Silent on type of stranding Water • Positioned between buffer • Water • Water blocking yarn swellable tubes (Claim 10, [0058]) swellable/blocking around the yarns yarn/tape around the polyethylene lining of • Prevents ingress of water buffer tubes [Fig. 1 the CSM [No.8 of in stranded core [0058] above] Fig.2 above] • Water blocking Yarn around the buffer tubes [No.4 of Fig.2 above] First Layer • Surrounds the buffer • Aramid yarn cross • Same as above [i.e., tubes, acts as a binding binding with water No.8 of Fig.2 above] element [0054] blocking tape around the buffer tube [5.3, • Comprises of yarns, Page 248] wherein yarns maybe CS (COMM) 19/2022 Page 31 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 made from polyester, aramid and polypropylene. [0015], [0054] Ripcords • Placed between first and • One ripcord under the • Special Ripcord on the second layer (Claim 9, HDPE sheath [Para first layer-easy access [0011, [0059]) to facilitate 5.8, Page 16] to the OFC without stripping of the second damaging the loose layer (Claim 9, [0011, • Used to open outer tube [No. 8 in Fig. 2 0059]) sheath above, and Feature, Page 1] • Made of polyester material [0059] Second • HDPE jacket [0056] from • HDPE Outer Sheath • High-Performance layer/Outer materials out of a group of with thickness 0.6 mm Polyamide Sheath polyamides, polyethylene [Para 5.7, Page 250] [Description, Page and polypropylene 293] [0018], [0056] Peripheral • In between first and None None Strength second layer [0060] member • Made of aramid yarns [0014], [0060] Table 1: Comparative Analysis of Features of Prior Art

25. A simple representation of the comparative analysis of each of the OFCs can be as under:

                                              Feature                     Suit Patent     Gigacom            Jio
                           Central Strength Member (CSM)                       ✓             ✓                ✓
                           Buffer tubes stranded around CSM                    ✓             ✓                ✓
                           Water swellable/blocking yarns                      ✓             ✓                ✓
                           First Layer                                         ✓             ✓                ✓
                           Ripcords                                            ✓             ✓                ✓
                           Second layer                                        ✓             ✓                ✓
                           Peripheral Strength Member                          ✓

Table 2: Simple Representation of Comparative Analysis CS (COMM) 19/2022 Page 32 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

26. A perusal of the above two tables clearly highlights the existence of almost all the elements of the suit patent in the prior art documents. If one were to analyze the differences, the same would be:

26.1. The water swellable yarn (112a and 112b in Fig. 1A above) in the suit patent appears to be longitudinal and in the Gigacom OFC, there is a water blocking yarn binding the CSM; and 26.2. The suit patent has 16 fibers enclosed in a sleeve and in the case of prior art documents they are either multiples of 6 in the RJIL OFC or multiples of 12 in the Gigacom OFC.

27. The above differences would in the opinion of the Court not be sufficient to hold that the suit patent is valid. In fact, the feature claimed by the Plaintiff to be novel and inventive, i.e., the cross-binding yarn is a common feature in all the documents and not a distinguishing feature. Moreover, all three documents disclosed the use of a similar type of yarn i.e., made of aramid, polypropylene or Kevlar, which strengthens and binds the buffer tubes. In this regard, this Court notes that it is not necessary while analyzing prior art documents that the same language as used in the suit patent, has to be used in the prior art in order for it to be novelty destroying or to show a lack of inventive step. It is possible that different terminologies or similar material is used in the prior art. For instance, in the present case, the purpose of using any specific material need not be spelt out in the prior art documents. The use of a yarn having similar or same properties would be sufficient to show that the purpose of the use of the yarn is the same. Thus, the overall disclosure and teachings in the prior art has to be CS (COMM) 19/2022 Page 33 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 compared with that of the suit patent. If the difference does not disclose a novel or inventive feature, the submission of invalidity would hold ground.

28. At this stage, it is also deemed appropriate to consider the claim by the Defendant that the only distinguishing feature of the Plaintiff's OFC is that it specifies the number of optical fibers in a sleeve as 16. The difference as to the number of optical fibers according to the Plaintiff would be immaterial inasmuch as 16 is only an illustrative number. The Plaintiff has submitted that this would also be borne out from the complete specification of the suit patent, where the Plaintiff has stated as under:

"[0029] Reference will now be made in detail to selected embodiments of the present disclosure in conjunction with accompanying figures. The embodiments described herein are not intended to limit the scope of the disclosure, and the present disclosure should not be construed as limited to the embodiments described.

...

[0032] In an embodiment of the present disclosure, the optical fiber cable 100 is used for communication purposes. In an embodiment of the present disclosure, the optical fiber cable 100 is a 96F micro optical fiber cable. In addition, 96F corresponds to 96 optical fibers. In an embodiment of the present disclosure, the number of optical fibers is less than 96. Further, the optical fiber cable 100 has a small diameter which makes the optical fiber cable 100 suitable for installation in the micro ducts.

[0033] The optical fiber cable 100 is made of a plurality of layers. The plurality of layers encloses one or more buffer tubes. Each of the one or more CS (COMM) 19/2022 Page 34 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 buffer tubes is a loose buffer tube. Each buffer tube of the one or more buffer tubes encloses a plurality of optical fibers. In an embodiment of the present disclosure, the plurality of optical fibers is loosely held inside the one or more buffer tubes. In an embodiment of the present disclosure, the one or more buffer tubes of a plurality of buffer tubes are fixed. In an embodiment of the present disclosure, one or more optical fibers of the plurality of optical fibers in each of the one or more buffer tubes are fixed..."

29. Considering these submissions, this Court is of the opinion that if the intention of the Plaintiff was not to limit the product Claims to 16 fibers, the wording of the Claims ought to have been as a "plurality of or multiple optical fibers". However, even if it is assumed that 16 is merely an illustrative number, the fact that almost identical OFCs were known in the existing state of art, as is reflected also in the prior art documents discussed above, poses a serious threat to the validity of the suit patent itself. The number of optical fibers would not be a sufficiently distinguishing feature. Moreover, an overall examination of all features of the OFCs shows that the differences disclosed above, between the prior art documents and the suit patent are almost negligible and at this stage, this Court is of the opinion that the validity of the suit patent is prima facie suspect. The said two prior arts, if not novelty destroying, clearly point to a lack of inventive step in the suit patent. Any person who is skilled in the art, who has knowledge of the prior art documents could have easily made the minor modification of changing the numbers of fibers in the sleeve or adding horizontal water swellable yarns (112a and 112b). The features in the suit patent do not CS (COMM) 19/2022 Page 35 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 point to any inventive step. Almost all the features of the patented product were present in the prior art and in the state of the art.

30. The above conclusion as to the prima facie invalidity of the suit patent is also buttressed by the following further factors:

30.1. The Plaintiff had filed a corresponding European Patent Application on 28th June, 2016, claiming priority from the suit patent application. The said patent was examined by the EPO and on the strength of the prior art which was also cited therein, the EPO rejected the Plaintiff's corresponding patent on the ground of lack of novelty and inventive step vide its decision dated 9th November, 2021.

30.2. The Plaintiff itself has applied for two further patent applications in India bearing IN201621010853 filed on 29th March 2016 and 2209/MUM/2015 filed on 9th June 2015. A comparative table of these two applications along with the suit patent is also set out below:

Feature Suit Patent IN201621010853 - SA1 2209/MUM/2015- SA2 Central • CSM located along • CSM located along • CSM located along Strength longitudinal axis with longitudinal axis with longitudinal axis with Member diameter of 1.60mm. diameter of about 4.80 diameter about 1.40 or (Claim 2, [0024]) mm including 2.80 mm [0032] polyethylene coating (Claim 1, [0024]) • CSM provides physical • CSM provides physical • CSM provides physical strength, resists strength, resist bending strength, resist bending bending and prevents and prevent buckling and prevent buckling buckling [0036] [0038] [0037] CS (COMM) 19/2022 Page 36 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 • CSM made of • CSM made of flexible • CSM made of Fiber Metallic/Non- Fiber Reinforced Reinforced Plastic or steel Metallic Fiber Plastic [0036] or any suitable material Reinforced Plastic or such as copper, aramid Aramid Reinforced or fiber glass [0031] Plastic (Claim 8, [0013]) • Comprising Steel • May be Coated with • May be coated with ethyl wire located Polyethylene [0014], acrylic acid internally, providing [0015] or high-density tensile strength and polyethylene, medium stiffness to OFC for density polyethylene facilitating blowing and polypropylene [0012] [0036] Buffer tubes • S-Z, helical stranded • S-Z stranded around • Helical stranding in pre-

                          stranded       around CSM ([0017])     CSM (Claim 8, [0018], defined direction        or S-Z
                          around                                 [0040])               stranded sleeves          around
                          CSM                                                          CSM (Claim 4,            [0015],
                                                                                       [0036])

• Maybe 6 in number or • Maybe 12 in number or • Plurality of sleeves-

                                         number may vary or be  number may vary         maybe 12 or 6 for instance
                                         less than 6 or maybe   [0042]                  [0034], [0036]
                                         replaced by fillers
                                         [0041]

• Uniform distribution of • Uniform distribution of • Uniform distribution of the the stress across all the the stress across all the stress across all sleeves one or more buffer one or more buffer [0037] tubes ([0040]) tubes [0040] • Each of the one or • Each of the one or more • Each sleeve may enclose a more buffer tubes buffer tubes encloses plurality of optical fires encloses 16 optical 24 optical fibers [Claim [Claim 1] or 12 optical fibers/ one or more 1] fibers or less [0036] optical fibers [Claim • The no. of optical 1] fibers in each of the buffer tubes may be more or less than 24 [0051] CS (COMM) 19/2022 Page 37 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 • Total number of the • Total number of the • Total no. of optical fibers plurality of optical plurality of optical maybe 72 (12 fibers * 6 fibers in an OFC is 96 fibers in an OFC is 288 buffer tubes) or 288 (24 (16 fibers * 6 buffer (24 fibers * 12 buffer fibers * 12 buffer tubes) tubes) tubes) • Total number of • Total number of optical • Total no. of optical fibers optical fires may be fires may be more or in an OFC may vary, as more or less than 96 less than 288 per requirement. [0036] depending upon the no. depending upon the no.

of buffer tubes and the of buffer tubes and the optical fibers in each optical fibers in each buffer tube buffer tube Water • Positioned between • Water blocking yarn • Yarns dispersed between swellable buffer tubes (Claim 10, positioned over buffer each of the plurality of yarns [0058]) tubes ([0012], [0035]) sleeves and yarns and sleeves protect against • Prevents ingress of • Prevents ingress of ingress of water ([0034], water in stranded core water in stranded core [0038]) ([0058]) [0057] First Layer • Surrounds the buffer • Surrounds the buffer • Surrounds sleeves and tubes, acts as a binding tubes, acts as a binding binds them around CSM and strengthening element (Claim 1, and acts as strengthening element ([0054], Claim [0024], [0054]) member [0039], [0023]

1) • Comprises of yarns, • Made of polyester or • Made of aramid [0039] wherein yarns maybe polypropylene [0054] and comprises three yarns made from polyester, (Claim 10) or less or more aramid and [0038] polypropylene.

                                          ([0015, [0054]])
                          Ripcords      • Placed between first • Ripcord embedded in • At the interface of second
                                          and second layer       first layer ([0013],  and third layer ([0018],
                                          (Claim   9,   [0011,   [0058])               [0045])
                                          0059])
                                        • Facilitate stripping of • Used     to    facilitate • Used to facilitate stripping
                                          the second layer          stripping of second         of third layer (Claim 7,
                                          (Claim     9,    [0011,   layer (Claim 3, [0013])     [0018])
                                          0059])

• Lie along longitudinal • Lies along longitudinal NA axis of the OFC axis ([0013], [0058]) ([0011], [0059]) CS (COMM) 19/2022 Page 38 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58 • Made of polyester • Made of Polyester • Made of Polyester or material ([0059]) Material [0058] suitable material [0045] Second • Made of material from • Made of Polyethylene • Made of super absorbent Layer or group of polyamides, or any suitable Polymer coated tape or Outer polyethylene and material (Claim 9, water blocking tape Sheath polypropylene ([0018, [0019], [0056]) (Claim 8, [0040]) 0056]) • Material could be • Made up specifically amongst HDPE, of HDPE jacket MDPE, nylon, or ([0056]) polypropylene [0056] • Also called as outer • Sheathing layer and • Prevents sticking of first sheath (Claim 1, [0018, protects OFC against and third layer in temp 0056]) crush, bend and tensile range 160 - 230 C (Claim • Protects OFC against stress [0056] lying on 1, [0044], [0023]) and for crush, bend and tensile longitudinal axis prevention of ingression stress ([0018, 0057]) [0022] of water through the sleeves (Claim 1, [0040]) Third Layer Not Applicable Not Applicable • Sheathing layer made of HDPE or MDPE (Claim 8, [0019], [0020]) • Surrounds the second layer ([0012], [0023], [0041]) • Interacts with ambient environment [0041] • Protects OFC against crush, bend and tensile stress [0041] Peripheral • In between first and • In between first and NA Strength second layer ([0060]) second layer (Claim 12, member [0022], [0061] • Made of aramid yarns • Made of aramid yarns (0014], [0060] (Claim 12, [0022] [0061]) CS (COMM) 19/2022 Page 39 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

31. A perusal of the suit patent as also SA1 and SA2, would show that SA1 and SA2 are not strictly prior art documents owing to their dates of filing. SA1 was filed with the same priority date as the suit patent, while SA2 was filed before the priority date of the suit patent application, however it is stated to have not been published before the priority date of the suit patent.

32. All three applications relate to similar OFCs with just some changes in dimensions, etc. All three have a CSM, made of similar reinforced plastic, with S-Z stranding, buffer tubes, water blocking yarns, first layer, ripcords, second layer made of similar material, and finally a peripheral strength member or a third layer. The main difference between SA1, SA2 and the suit patent is the number of optical fibers inside the buffer tube and presence of the third layer. In the suit patent, the same is specifically claimed as 16 in number, whereas in SA1, it is specifically claimed as 24 in number, and in SA2, it is only mentioned as a "plurality of optical fibers".

33. The facts relating to these two applications are extremely relevant, inasmuch as it adds strength to the Defendant's argument that the main feature of the suit patent is the number of optical fibers, i.e., 16. It also reflects upon the manner in which the inventors used different terminology in the Claims. For example, in SA2 the terminology used is "plurality of optical fibers" whereas in the suit patent, the number 16 is specifically mentioned in the Claims. The applicants were, thus, conscious of the difference in use of this terminology and the same cannot be, therefore, overlooked as a mere error or oversight, at the prima facie stage.

CS (COMM) 19/2022 Page 40 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

34. These two applications, in fact, lend further support to the Defendant's argument that the Plaintiff sought to distinguish the suit patent and obtain the grant of suit patent on the basis of having 16 optical fibers within a buffer tube. Thus, the number 16 may not be merely illustrative as is sought to be argued before the Court.

35. In view of the above analysis of the prior art and the Claims of the suit patent, this Court prima facie concludes that the Plaintiff is not entitled to the interim injunction as there is serious doubt as to the novelty and inventive nature of the suit patent itself. This Court has also noticed that the Defendant is a leading company in the optical fiber cable business. It is also a listed company. The Court also bears in mind the fact that the Defendant was permitted to honour certain purchase orders, which were placed on them from various foreign companies, which included products covered by the suit patent. These supplies were permitted to be made, despite operation of the injunction order subject to certain deposits. Even now, the view being taken by this Court both on infringement and validity is prima facie in nature and would obviously not bind the trial of the suit post evidence.

36. Considering these overall facts and circumstances, in the opinion of this Court, the ex parte injunction is liable to be vacated on the following terms and conditions:

36.1. The Defendant shall maintain proper accounts of all the sales of the impugned OFC made by it and file the same before the Court in a sealed cover on a half yearly basis;

CS (COMM) 19/2022 Page 41 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

36.2. The amount of Rs.5 crores lying deposited by the Defendant, shall continue to remain in the account of the worthy Registrar General in an interest-bearing fixed deposit and shall be subject to the final decision in the suit;

36.3. The observations made in the present order shall not bind the trial of the suit and are merely prima facie in nature.

37. The ex parte injunction granted vide order dated 12th January 2022 is vacated in the above terms. Both the applications seeking interim injunction and vacation of injunction being I.A. 504/2022 and I.A.1334/2022, are disposed of in the above terms.

PRATHIBA M. SINGH, J.

SEPTEMBER 14, 2022 Rahul/MS CS (COMM) 19/2022 Page 42 of 42 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:15.09.2022 15:03:58

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