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(vi) The defendant has given the details of challenge of each patents separately in the written statement.

41. It is alleged by the defendant that the plaintiff has not disclosed to this Court that in 2011, the plaintiff instituted a suit in the Court of Rome against Z.T.E Italy S.R.L. (Italy), a subsidiary of the ZTE Corporation (a Chinese multinational telecommunication equipment major) for alleged infringement of the plaintiff's SEPs covering GSM and EDGE technologies, the very same technologies which form the subject-matter of the plaintiff's claim in the instant Suit. The facts of the dispute between the plaintiff and Z.T.E are similar to the facts of the instant Suit. The plaintiff and ZTE had been negotiating the terms of the license for use of the plaintiff's SEPs covering GSM and EDGE technologies, however both parties could not agree on the terms of the license. Subsequently, the plaintiff sued Z.T.E for alleged infringement of its SEPs and sought an interim injunction from the Court of Rome against ZTE. The Court of Rome, in the first instance as well as in appeal, rejected all of Ericsson's claims. With specific regard to the plaintiff's prayer for interim injunction therein, the Court of Rome challenged the very presumption of "essentiality" of the patents asserted by the plaintiff. The Court of Rome categorically observed that in order to assess the claim of essentiality, it was necessary to examine the patents, which was too complex an analysis for the purposes of interim proceedings. Further, the Court of Rome held that even if it were to be assumed that the patents asserted were indeed "essential", the plaintiff would not suffer from irreparable harm since the primary issue between the parties was essentially pecuniary in nature, which was quantifiable and compensable by way of damages. Consequently, the plaintiff's prayer for interim injunction was dismissed. In appeal too, the Court of Rome held that there would be no loss of value due to alleged infringement, and that the plaintiff could establish its case at trial. An article on the said case enumerating the above facts has been filed herewith. Ultimately, in January 2012, the plaintiff had to drop all suits instituted against ZTE and settle the matter.

Thus, the claim is one for damages, which can be compensated if Plaintiff succeeds at trial. Simply put, no irreparable harm would be caused to the Plaintiff by non-grant of an interim injunction.

56. At the interim stage since mere registration is not proof of its validity. For the purposes of the instant Suit, the Defendant has invoked Section 107 of the Act and placed express reliance on its revocation petitions to challenge the validity of the Plaintiff's Suit patents. It is also submitted that in light of the prior pending revocation petitions challenging the validity of the patents asserted in the Suit, until the issue of validity is not conclusively adjudicated upon, the Plaintiff is not entitled to the grant of any relief, interim or permanent, by this Court. It is stated that the institution of revocation proceedings by the Defendant was necessitated by the fact that at no point during the negotiations between the parties was there an effort on the part of the Plaintiff to address the Defendant's repeated concerns regarding the validity of the former's patents. Consequently, in order to test the validity of the Plaintiff's patents in and by an expert forum, the Defendant had no option but to file the revocation petitions before the IPAB.

The proposition laid down in Chemtura's case (supra) for denial of interim injunction on grounds of prima facie violation of Section 8 of the Act has not been altered, and has in fact been affirmed by the Division Bench in the Phillips case as follows:

"39. In Chemtura Corporation Case (supra), this Court was dealing with grant of injunction under Order XXXIX Rule 1 and 2 of CPC. Having recorded a prima facie satisfaction that there had been a failure by the plaintiff to comply with the mandatory requirement of Section 8(1), this Court held that the interim injunction in favour of the plaintiff cannot be continued. The question whether the power conferred under Section 64(1) of the Patents Act for revocation of the patent is discretionary or mandatory neither fell for consideration nor adjudicated by the Court in the said decision. Therefore, the learned Single Judge had rightly distinguished Chemtura Corporation Case (supra) relied upon by the learned counsel for the appellants/defendants."

69. It is submitted that grant of an injunction would in fact cause irreparable harm to the business of the defendant and to the consuming public which is dependent on the affordable mobile phones made available by the defendant. Given that the Defendant is not a fly- by-night operator and has made significant investments in its business and has a reputation worth protecting among its consumers, grant of an interim injunction would bring the entire business of the Defendant to a standstill. This result of no benefit to either party considering that the claim is ultimately pecuniary in nature. The Defendant is an entity with an annual turnover of INR 2057 crores with over 2000 employees on its payroll and a distribution network comprised of over 1100 distributors and over 50000 dealers. Further, the Defendant deals in affordable mobile phones which cater to low and mid-segment. In view of these facts, a grant of an interim injunction would result in irreparable harm to the Defendant's business and severely undermine its reputation in the market, thereby compromising its short and long term interests.