IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  FAO(OS) 369/2014
  
  VRINGO INFRASTRUCTURE INC, and ANR. ..... Appellant
  
  Represented by: Ms.Pratibha M.Singh, Sr.Adv.
  instructed by Mr.Ashutosh
  Kumar, Mr.B.Prashant Kumar,
  Mr.Saurav, Advs.
  
  
  
  
versus
  
  
  
  ZTE CORPORATION and ORS. ..... Respondent
  
  Represented by: Mr.Sandeep Sethi, Sr.Adv.
  instructed by Mr.Sanjeev
  K.Tiwari, Ms.Valini Panta,
  Advs. for R-1 to 3.
  
  
  
  CORAM:
  
   HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
  
   HON'BLE MS. JUSTICE MUKTA GUPTA
  
  
  
   O R D E R
  
   13.08.2014
  
  CAVEAT 683/2014
  
  Counsel as above appears for the respondent/ caveator and thus the
  caveat is discharged.
  
  CM Nos. 13159-13161/2014
  
  Allowed.
  
  FAO(OS) 369/2014
  
  1. Having heard learned counsel for the parties we note that emphasis
  in appeal today is restricted to prayer ?b?. It reads as under:
  
  ?b. Set aside the observations/ findings recorded by the learned Single
  Judge against the appellants to the following effect:
  
  - Mr.Regis Bates, Jr is not an expert (paragraph Nos.22-25 and 27);
  
  - The predecessor in title and the licensees of the appellants were also
  required to complain against the respondents (paragraphs 29-30 and 35);
  
  - Working of a patent must necessarily be established in plaint and the
  averments contained in rejoinder/replication cannot be taken into
  consideration (paragraphs 33-34)
  
  2. To appreciate the prayer made it would be necessary to pen profile
  the backdrop facts. The plaintiff No.1 claims to be the subsidiary of
  plaintiff No.2. As per the plaint, plaintiff No.2 is engaged in the
  business of development and manufacture of mobile application products.
  The plaintiffs claim proprietary rights in patent No. IN-200572. They
  title the innovation ?A method and a device for making a handover
  decision in a mobile communication system?. The plaintiffs claim that
  the innovation lies in the ability to measure at a mobile station, a
  radio signal transmitted by a base station of a microcell and reporting
  the measurement resulting at substantial regular intervals and commanding
  the mobile stations as slow moving mobile stations to switch to the base
  station of a suitable microcell. The plaintiffs explain the patent with
  respect to pictorial description by the learned Single Judge in paragraph
  5 of the impugned decision.
  
  3. The grievance was against defendant No.3, a wholly owned subsidiary
  of defendant No.4, which defendant is a company incorporated in the
  People?s Republic of China.
  
  4. The allegation is that the defendants are infringing the patent of
  the plaintiff by manufacturing, importing and selling infrastructure
  equipments including Base Station Controllers, the examples of which as
  per the allegations in the plaint have been noted in paragraph 7 of the
  impugned decision.
  
  5. The plaintiffs do not claim to be the inventor of the patent.
  According to them the patent was owned by NOKIA Corporation and was
  assigned to them on August 09, 2012.
  
  
  6. The defendants dispute having infringed the patent of the plaintiff and disclosed to the learned Single Judge the technology behind the
  product manufactured and sold by them. The same has been captured by the
  learned Single Judge in paragraph 10 of the impugned decision.
  
  7. In support of its case that the defendants were infringing the
  patent of the plaintiffs, which have been acquired by the plaintiff on
  assignment from NOKIA, the plaintiffs filed a detailed affidavit of one
  Mr.Regis Jr. Bates to bring home the point that prima facie the
  defendants were infringing the patent of the plaintiffs. The learned
  Single Judge has taken a prima facie view that the worth of the opinion
  of Mr.Regis Jr. Bates would be nil. The reason for the view taken by the
  learned Single Judge is that he does not hold a degree in science,
  engineering or technology concerning telecommunication. As per the
  learned Single Judge he lacks practical or research experience to qualify
  as an expert. He does not hold a responsible post in a scientific or
  technical department.
  
  8. The first grievance in prayer ?b? relates to said prima facie
  observations made by the learned Single Judge.
  
  9. The plaintiffs would be adversely affected as told to us at the bar
  today, for the reason the plaintiffs have been citing Mr.Regis Jr. Bates
  as their expert witness in other litigations and the prima facie view
  taken by the learned Single Judge would cause prejudice to the
  plaintiffs.
  
  10. Suffice it to state that observations in ad-interim or interim
  orders in relation to the backdrop facts noted are never treated as
  conclusive and final. It would be not possible for any Judge to bring
  out an issue of law without capturing the backdrop facts in which the
  issue of law has to be decided. Thus, in relation to interim orders the
  capturing of the backdrop facts is not to be treated as if the said
  backdrop facts have been held to be proved. The said backdrop facts are
  akin to the backdrop colour on the canvas put by an artist before
  painting a picture.
  
  11. Be that as it may, it is accepted and recognised that a person
  could be an expert in an area of specialised knowledge by experience and
  he or she need not hold a degree in the field of specialised knowledge.
  A person can also become an expert by virtue of one?s avocation or
  occupation.
  
  12. To understand the second grievance as per prayer ?b? the backdrop
  facts would be a view taken by the learned Single Judge that the
  defendants are selling the products using the technology, which is
  alleged to be constituting a violation of the plaintiff?s patent rights,
  since the year 2006. The learned Single Judge has noted the fact that
  companies like NSN (Nokia), Alcatel, Samsung etc. who are the licensees
  of the patent of the plaintiffs were aware of the sale of the products by
  the defendants in India and that they never objected thereto.
  
  13. The grievance of the plaintiffs is that the observations would
  constitute a finding against them and may create problems in the form of
  estoppel or waiver. It is urged that licensees cannot take action for
  infringement of a patent.
  
  
  14. The observations of the learned Single Judge have to be understood in the context of the fact that they find a mention in the impugned order
  when the learned Single Judge was considering the balance of convenience.
  To put it pithily, the signature tune of the observations is that no
  injunction should be granted against a defendant if the defendant is
  continuing with an activity for long. It is trite that in cases of
  injunction where a plaintiff has permitted a situation to exist for a
  long period of time, its discontinuation is not warranted unless a prima
  facie case of a very strong nature is made out.
  
  15. The observations of the learned Single Judge have to be treated as
  prima facie and have to be understood as above. We see no cause for the
  plaintiff?s grievance of estoppels or waiver against it emanating from
  the findings returned by the learned Single Judge.
  
  16. The third grievance has to be understood with reference to the fact
  that in the plaint there are no averments regarding commercial
  exploitation of the patents in India on which the plaintiff relied. When
  a plea was taken in the written statement that in view of the law
  declared in the opinion reported as AIR 1997 DELHI 79 Franz Xaver Huemer
  
Vs. New Yash Engineers the plaintiffs are not entitled to any relief, in
  the replication pleadings were made regarding commercial exploitation of
  the patent through the licensees the learned Single Judge took the view
  that replication does not constitute pleadings. The Learned Single Judge
  held, for purposes of grant of an ad-interim injunction, that he must
  proceed on the basis that the plaintiffs had not commercially exploited
  the patents in India.
  
  17. Emphasising that the view taken is a prima facie view, we would
  simply hold that law is clear on the subject. If a Court grants an
  opportunity to a plaintiff to file a replication, the replication has to
  be treated as a pleading. Of course if a fact is pleaded for the first
  time in a replication, should the defendants desire a right has to be
  afforded to file a sur-rejoinder.
  
  18. In view of the discussion noted above, dealing with three issues
  concerning prayer ?b? and noting that during arguments no arguments have
  been advanced on prayer ?a? we bring the curtains down noting that the
  learned Single Judge has vacated the ex-parte ad-interim injunction but
  on terms. The impugned order is not interfered with.
  
  19. The appeal is disposed of.
  
  20. No cost.
  
  CM 13158/2014 (stay)
  
  Dismissed as not pressed.
  
   PRADEEP NANDRAJOG, J.
  
  
  
  
  
   MUKTA GUPTA, J.
  
  AUGUST 13, 2014
  
  ?ga?
  
  
  
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