As reported by Rajiv Kr. Choudhry on the SpicyIP Blog on August 10, and by Madhur Singh in the August 12, 2014 issue of Bloomberg BNA World Intellectual Property Report (available here, behind a paywall), on August 5 Justice V.K. Shali of the High Court of Delhi at New Delhi lifted an ad interim stay--effectively denying a preliminary injunction--in a proceeding brought by Vringo Infrastructure Inc. and Vringo Inc. (collectively, "Vringo") against ZTE and an Indian subsidiary, ZTE Telecom Indian Private Limited (collectively, "ZTE"). (Here is a link to the opinion.) Vringo owns Indian patent No. 200572, for "a method and a device for making a handover decision in a mobile communication system." It purchased the patent from Nokia in 2006 and served a cease and desist letter on ZTE in December 2012. According to the court, in order to obtain a preliminary injunction Vringo needed to prove three elements: a prima facie case, that the balance of conveniences favored the plaintiff, and that the plaintiff was faced with irreparable harm. The court concluded that Vringo failed on all of these elements.
As for the prima facie case, the court stated that there is no presumption of patent validity (p.17). Instead:
The plaintiffs must establish such acts as will prima facie satisfy the court that there are strong and prima facie reasons for acting on the supposition that the patent is valid. It has been held in National Research Development Corporation of India vs. The Delhi Cloth & General Mills Co. Ltd. and Ors.; AIR 1980 Delhi 132 that the most cogent evidence for this purpose is either that there has been a previous trial in which patent has been held to be valid or that the patentee has worked the patent and enjoyed the same without dispute, either from the defendants or anyone. The defendants have set up a counter claim for revocation of the patent under Section 64 of the Act. Therefore, it cannot be said that the plaintiffs are having a prima facie good case on the basis of the registration of the patent alone. It is required to do something more. This something more is being sought to be shown by an affidavit by the plaintiffs which claims to be an affidavit of an expert (pp. 17-18).
The court, however, concluded that the submission of the plaintiffs' proposed expert that the defendant's products infringed did not make out a prima facie case. According to the court, the expert had stated that "he is not a patent attorney and does not purport to provide expert opinions in this report on Indian patent law" (p.20). The court also noted that he did not possess a science or engineering degree, and noted that he would not have been able to serve a court-appointed scientific advisor under Rule 103 of the Patent Rules (pp. 21-24).
On the balance of conveniences, the court stated that
While examining the question of balance of convenience, a number of factors will have to be taken into account by the court depending on the facts and situations of each case. In the instant case, for example, the balance of convenience to be established by the plaintiffs would entail examination as to whether it is marketing the patented product in the Indian market, whether it has approached the court with clean hands without concealment of material facts and whether there has been any delay in approaching the court, etc. (p.24).
Here, the court noted that the assignment of the patent took place in 2006, that Nokia itself had never sued anyone for infringing it, that none of Vringo's licensees had demanded a lawsuit either, and that Vringo itself does not work the patent (pp. 25-32).
Finally, as for irreparable harm, the court stated that "the patentee has a right to get an injunction but that right is not an absolute right and a mandatory right. . . . the patentee has prima facie a right to obtain an injunction but that injunction is not necessarily to be granted as a matter of course. It can be refused in case a party can adequately be compensated in terms of money or the court can sufficiently protect the interest of the plaintiffs by passing certain other directions" (pp. 33-34).
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