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Showing contexts for: Software Source code in Eicore Technologies Pvt. Ltd. & Ors vs Eexpedise Technologies Pvt. Ltd. & Ors on 4 September, 2023Matching Fragments
(e) Defendants No. 4, 6, 8, 10, 12 and 14 to 19 are ex-
employees of Plaintiffs No. 1 to 4. In the course of their employment, they discreetly incorporated Defendants No. 1 to 3, while they had complete access to Plaintiffs' proprietary software 'HealthBuzz', its source code and all other confidential data and trade secrets of the Plaintiffs. The infringing activities include misrepresentation to Plaintiffs' clients and business community that Defendants No. 1 to 3 were associates of Plaintiffs and authorized to provide services. Actual servicing/maintenance of the softwares installed by the Plaintiffs for their clients can only be possible if there is access to the source code of Plaintiffs' software 'HealthBuzz' and therefore, it is evident that even while servicing the softwares of the clients of the Plaintiffs, Defendants are using the copyrighted source code. Provision of other services, such as addition of modules or This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:14:46 software. Therefore and even when the defendants were ready to provide the source code and the object code to the Court so that Court may send to any impartial and independent expert for comparison with the source code and the object code of the plaintiff, we are of the opinion that the learned Judge ought to have called upon the defendants to provide their source code and object code of their software which could have been sent to an impartial and independent expert for comparison with the source code and object code of the plaintiff. Therefore, we are of the opinion that without undertaking the aforesaid exercise the learned Judge has materially erred in refusing to grant the injunction on the ground that the plaintiff has failed to prove that the source code or the object code of the plaintiff's software and the defendants' software are same or the defendants have copied the source code or the object code of the plaintiffs. The learned Judge has not properly appreciated the fact that when the source code and the object code of the defendants' software is within exclusive domain and custody of the defendants as the same being secret, the plaintiff could not have any access to the same to prove that the source code or the object code of the plaintiff's software and the defendants' software are same or the defendants have copied the source code or the object code of the plaintiff. At this stage it is required to be noted and as observed hereinabove even the learned Counsel appearing on behalf of the defendants submitted before the learned Judge, Commercial Court that the defendants are ready to provide the source code and the object code to the Court and the Court may send the same to any impartial and independent expert for comparison with the source code or the object code of the plaintiff. If the aforesaid exercise would have been undertaken by the learned Judge, Commercial Court while/before deciding the application Exh. 5, in that case, the defence of the defendants could have been very well appreciated and/or considered as according to the defendants they have developed their own software and that they have not copied the software of the plaintiff. Therefore, we are of the opinion that while/before deciding the application Exh. 5, the learned Judge, Commercial Court ought to have undertaken the aforesaid exercise.
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14. In any case as observed hereinabove whether the source code or the object code of the plaintiff's software and the defendants' software are the same or not or the defendants have copied the source code or the object code of the plaintiff's software or not would go to the root of the matter. The source code or the object code of the plaintiff's and defendants' software are required to be compared by calling upon both of them to provide their respective source code and object code which can be send to any impartial and independent expert for comparison. Therefore, We are of the opinion that without further entering into the merits of the case and/or expressing anything on merits, the matter is required to be remanded to the learned Judge, Commercial Court for deciding the application This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:14:46 intellectual property rights in the service work in favour of the clients while others point out to the non-exclusive rights of the Plaintiffs in the service software/modules.
22. From the copious literature on the servicing and maintenance of softwares, available in public domain, to this Court it appears that servicing/maintenance contracts of a software are of different kinds, such as corrective maintenance, adaptive maintenance, perfective maintenance and preventive maintenance. While some services/ maintenance mechanisms may require access to the source code of the Plaintiffs as also modification thereof while others may relate strictly to the service work code/modules requiring no intervention in the source code. Certainly, if while servicing the softwares, Defendants are accessing the copyrighted source code of the Plaintiffs, it is an infringement. However, the question that again begs an answer is whether this Court is today adequately equipped to come to a finding that while servicing the softwares of third parties or the clients of the Plaintiffs, Defendants are accessing the copyrighted source code of 'HealthBuzz' and the answer is in the negative. In the absence of an expert opinion on the subject, Court does not have the necessary material or the expertise to ascertain if the Defendants are accessing Plaintiffs' source code while servicing the softwares of third parties and/or Plaintiffs' clients. Additionally, several related and significant questions also arise viz. (a) whether Defendants have access to the source code of the Plaintiffs; (b) whether it is impossible to service the third party softwares without access, use and modification of Plaintiffs' copyrighted source code; and (c) scope of work of servicing assignments and the modules/codes used, which may also require reference for an expert opinion.