Delhi High Court Sets Up Confidentiality Club To Look At Third-Party Agreements

To maintain necessity of industry confidentiality, a single judge bench of Delhi High Court has allowed for the constitution of a confidentiality club comprising of eight lawyers and two experts to inspect third-party agreements and documents to look into alleged infringement of patents in a case pertaining to patented technology relating to radio communication. Among the series of cases filed by Philips against Chinese companies for allegedly infringing their "Standard Essential Patent" (SEP), an interim order was pronounced on Saturday in Philip's suit against Vivo. In the suit, the plaintiff (Philips) alleged that the defendants (Vivo & Ors.) is infringing on five (5) of its SEPs, which are – (i) "Indian Patent Number: IN 275419: A method of operating a radio communication apparatus and a radio communication apparatus; (expires on 10.8.2026), (ii) Indian Patent Number: IN 271469: A method of multiplexing data packets having different assigned priorities; (expires on 4.11.2025), (iii) Indian Patent Number: IN 228133: A method of operating a radio communications system; (expires on 20.4.2024), (iv) Indian Patent Number: IN 221703: A method of operating a radio communication system; (expired on 8.5.2020 and is being asserted for past infringement), (v) Indian Patent Number: IN 211041: A radio communication system and a method for operating the same. (expired on 24.12.2019 and is being asserted for past infringement)." The plaintiff had filed a suit seeking a decree of permanent injunction to restrain the defendants from manufacturing, assembling, importing, selling, offering for sale, advertising including through their and third-party websites, mobile phones including the models mentioned in the plaint and any further or other devices or models inclusive of UMTS enhancements and LTE technologies that result in alleged infringement of the plaintiff's patents. The plaintiff had filed an interim application seeking interrogatories to be submitted and production of certain documents under Order 11 Rules 2 and 14, read with S.151, CPC, from defendants No. 1 and 2. Plaintiff's submissions: Senior advocate Chander Lall representing the plaintiff submitted that - not only were the defendants infringing on the plaintiff's SEPs, but they were also refusing to make payment under FRAND terms as they claimed to have obtained their chipsets from Qualcomm and MediaTek. Keeping this in mind, the plaintiffs had applied for production of license agreements between Qualcomm, other companies and Vivo under Order 11 Rule 2 and Rule 14, CPC. It was requested that these documents be allowed and "the question of relevancy need not be considered at this stage". Defendant's submissions: The counsel for the defendants argued that Courts shouldn't routinely allow applications under Order 11 Rule 2 and Rule 14 without considering whether the documents were necessary to determine the suit. Moreover, since it was the case of the plaintiff that their patents were being infringed, the burden was on them to prove their case. The counsel for the defendants also stated that "the onus should not be shifted by asking questions that infringed on industry confidentiality". Furthermore, the counsel for the defendant also pointed out that the services of the handsets were derived from the chips outsourced from Qualcomm and MediaTek, who have not even been made parties to this suit, if there is a case of infringement, it should be against them. It was further pointed out that under FRAND obligations, the plaintiff had to make disclosures before demanding a certain license fee from the defendants to establish that its demand was fair, which hadn't been made in the present suit. Thus, keeping in mind that the plaintiffs lack openness and documentation, the interim application under Order 11 Rule 2 and Rule 14 was liable to be dismissed. Court's observations: The issues before the Court were – (a) Whether the defendants' mobile devices comply with the following ETSI Standards relating to UMTS (including HSPA/HSPA+) and LTE technologies- IN 211041 1. ETSI TS 125 211 V4.6.0 (2002-2009) 2. ETSI TS 125 214 V4.6.0 (2003-03) 3. ETSI TS 125 101 V4.13.0 (2006-2012) IN 221703 1. ETSI TS 125 211 V4.6.0 (2002-2009) 2. ETSI TS 125 214 V4.6.0 (2003-03) 3. ETSI 125 331 V4.21.0 (2012-01) IN 228133 1. ETSI TS 125 211 V6.10.0 (2009-09) 2. ETSI TS 125 214 V6.11.0 (2006-12) 3. ETSI TS 125 212 V6.10.0 (2006-12) IN 275419 1. ETSI TS 125 211 V7.10.0 (2010-10) 2. ETSI TS 125 214 V7.17.0 (2011-01) 3. ETSI TR 125 903 V7.0.0 (2007-03) IN 271469 1. ETSI TS 136 321 V8.12.0 (2012-03) 2. ETSI TS 136 300 V8.12.0 (2010-04) (b) Whether the defendants'...

Delhi High Court Sets Up Confidentiality Club To Look At Third-Party Agreements

Suhavi Arya

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