TaxTMI 
TaxTMI 
2015 (3) TMI 1453
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....elefonaktiebolaget LM Ericsson is a company incorporated under the laws of Sweden who is the mother company of the Ericsson group, which was founded in Sweden in 1876 and it is claimed that the plaintiff is one of the largest telecommunications companies in the world. The Ericsson group is active in more than 180 countries having annual sales of USD 35 Billion (approximately) for the year 2013. The Ericsson's main trade is to provide telecom operators with best-in- class equipment and services for telecommunications network. The Ericsson group has invested tons of billions of US dollars in the past decade on telecommunications research and development. In 2013 alone, the Ericsson group invested approximately USD 5 Billion on R&D. The plaintiff's portfolio comprises of mobile and fixed network infrastructure, telecom services, software, broadband and multimedia solutions for operators, enterprises and the media industry. In the year 2012, the plaintiff received awards for "Top Wireless Infrastructure Company" at the prestigious CyberMedia ICT Business Awards, "Largest Telecom Equipment Manufacturer" from CMAI, "Innovative Network Management Solutions" and "Innovative V....
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.... IN203036 Apparatus for producing from an original speech signal a plurality of parameters The patent relates to improved coding criteria for accommodating noise like signals at lowered bit rates. In the conventional encoders when CELP is used, if bit rates go below 8 kbps, the ability of the encoder to do waveform matching of non-periodic noise like unvoiced speech and background noise suffers thereby affecting the efficiency. In order to overcome the same, different coding mode (e.g., energy matching) was used for unvoiced speech and background noise. The drawback with this approach was the need for mode decision, for example, choosing waveform matching mode for voiced speech and choosing energy matching mode for noise-like signals like unvoiced speech and background noise. The mode decision is sensitive and causes annoying artifacts when wrong. Also, the drastic change of coding strategy between modes can cause unwanted sounds. The patent advantageously combines waveform matching and energy matching criteria into one criterion to improve the coding of noise-like signals at lowered bit rates without the disadvantages of multi-mode coding thereby avoiding the p....
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....n pertaining to the coding modes which are being used is also shared/ transferred either beforehand or simultaneously by the transceivers. The present patent generally relates to mode handling in the field of communication systems and, more particularly, to handling the transmission of information associated with requesting and identifying coding modes in digital communication systems that support multiple speech/ forward error correction coding schemes. The present patent relates to mode indicators which reflect the transmitter's currently employed speech coding/channel coding combination and mode requests which reflect the receiver's request for a particular speech coding/ channel coding mode to be employed. For example, when channel conditions are good, the receiver may send a mode request in the uplink for a speech coding/ channel coding mode which provides for a high source coding bit rate and a relatively low degree of error protection. When the transmitter transmits information using the requested mode, it will also include a corresponding mode indicator in its downlink transmissions; Thus, mode indicators and mode requests are communicated between transmitting an....
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.... processing multiple data services over a communication link between a Mobile Station and a Base Station: First a plurality of radio bearer services are processed and the data within the radio bearers is separated into a plurality of data blocks; Separated data blocks are combined with other data blocks from services having similar Quality of Services requirement into a transmission block for transmission on a single logical/ transport channel; Data blocks within the transmission blocks may be prioritized such that high priority data blocks are transmitted prior to low priority data blocks; Thus, the present patent provides flexibility in the manner in which radio bearers are mapped onto logical/ transport channels to enable the efficient management of various services mixes without exceeding the mobile stations set power levels. Claims 1-9 relate to a mobile station that can process multiple data services simultaneously with efficiency as detailed above. IN240471 A mobile radio for use in a mobile radio communication system The present patent relates to a mobile device being used for generating parameter (signal strength, signal quality etc) repor....
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....s of the defendant to establish that the same are infringing in nature. 7. The defendant sells/markets multiple models of phones/ telecommunication devices (tablets, dongles etc.) in India under the brands 'INTEX'. The defendant has incorporated the suit patents in numerous of its mobile handsets/ devices in the past and continues to do the same. 8. The abovementioned patents are "Standard Essential Patents" in the field of telecommunication and are mandatorily required and used for the implementation of the concerned technologies including 2G and 3G technologies. The plaintiff, in the light of the FRAND commitment made by it to various Standard Setting Organizations including ETSI (European Telecommunication Standards Institute) fairly offered a license for its entire portfolio of patents (including the suit patents) which are essential for 2G and 3G technologies to the defendant. However, despite being put to notice since December 2008, the defendant has failed to obtain licenses from the plaintiff for its Standard Essential Patents (hereinafter SEPs) including the suit patents. The plaintiff contends that from 2008 onwards till the filing of the present suit, thoug....
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....include EDGE (Enhanced Data Rates for GSM Evolution, or EGPRS) as well as AMR. v) In 1998, an Organization known as 3GPP (Third Generation Partnership Project) was established internationally to make globally- applicable, 3G mobile phone system specifications based on GSM. In 2000, UMTS/ WCDMA (Universal Mobile Telecommunications System/ Wideband Code Division Multiple Access), also popularly known as the Third Generation (3G) cellular system, was developed. In later years, enhancements to this cellular system were made through HSDPA (High Speed Downlink Packet Access), HSUPA (High Speed Uplink Packet Access), and other technologies, collectively known as 3.5G or 3G+. In 2008 and onwards, LTE (Long Term Evolution) systems and standards were developed for wireless communication of high-speed data. LTE is popularly known as the Fourth Generation (4G) cellular system. 10. It is averred in the plaint that basic difference among the aforesaid various systems/ technologies (1G, 2G, 3G, 3.5G & 4G) is the speed and ability to transfer data more efficiently. Currently, 3GPP is responsible for bringing together various standardization institutes (including ETSI), network provider....
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....ees of such essential patents have broadly committed to FRAND (Fair, Reasonable and Non-discriminatory) licensing. FRAND is a balance between ensuring the availability of an open, global standard to a new entrant and incentivizing development of that standard by rewarding those who contributed to the standard with their R&D. The plaintiff supports FRAND licensing. The plaintiff has over 100 global license agreements with vendors in the telecom industry. 13. In support of its case the suit patents (related to AMR, EDGE and 3G technologies) are essential patents and they correspond to the standards issued by ETSI related to the aforesaid 2G and 3G technologies. The Department of Telecommunications, India has recognized ETSI standards as approved standards for GSM, WCDMA/ UMTS network and equipment providers and as a consequence the same are required to be complied with by various device importers, manufacturers, sellers etc. It is apparent from a bare perusal of the Unified Access Services License Agreement, copy of which is being filed with the present suit. Every telecom service provider in India has to enter into a UASL agreement with the Government. 14. The plaintiff has re....
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....hod and Encoder" 24.08.1999 19.10.2006 23.8.2019 IN/ PCT/ 2001/ 00290/ MUM - IN'203036 Apparatus of Producing from an Original Speech Signal a Plurality of Parameters 06.08.1999 19.10.2006 5.8.2019 IN/ PCT/ 2001/ 00246/ MUM - IN'234157 A Method of Encoding/ Decoding Multi- Code Book Fixed Bitrate CELP Signal Block 24.08.1999 07.05.2009 23.8.2019 IN/ PCT/ 2001/ 00324/ MUM - IN'203686 Method and System for Alternating Transmission of Codec Mode Information 03.09.1999 01.11.2006 2.9.2019 IN/ PCT/ 2001/ 00552/ MUM - IN'213723 Method and Apparatus for Generating Comfort Noise in a Speech Decoder. 08.11.1999 10.01.2008 7.11.2019 3G Patents 2818/ DEL/ 1998 - IN'229632 Multi-Service Handling by a Single Mobile Station 18.09.1998 19.02.2009 17.9.2018 IN/ PCT/ 2001/ 01411/ MUM - IN'240471 A Mobile Radio for Use in a Mobile Radio Communications System. 09.05.2000 12.05.2010 8.5.2020 EDGE Patent 2490/ DEL/ 1998 - IN'241747 A Transceiving Omit Unit for Block Automatic Retransmission Reques....
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....nctional GSM network with tracing equipment to see the signalling for a specific terminal in it. In fact, certain communication characteristics (eg: usage of the AMR codec) can be set in the network and the communication with the single terminal can be logged. Following steps were followed as alleged by the plaintiff to test if a mobile device complies with the AMR speech codec : i. The AMR Active Codec Set = [4.75, 5.9, 7.95, 12.2] K Bit/ Sec was set in the network and an originating speech call from the mobile terminal was made; ii. The Protocol including the Bearer Capability Information Element (IE) at call-setup and the Codec Mode Indication (CMI) commands during the call were logged; The information whether the AMR-codec is supported by the mobile terminal under test (or not), can be found in the Bearer Capability IE inside the SETUP messages sent by the mobile terminal to the network at mobile terminal call as the mobile terminal reports which codec modes are supported and used. Thus, on the basis of logs captured it can be confirmed whether a handset/ device supports or uses AMR Codecs in a 2G network. b. Use of AMR Codecs in 3G (Mandatory i....
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....s, tablets etc) - no test reports are per se required for establishing infringement if a product claims to be EDGE compliant. However, in-house testing was conducted by the plaintiff in order to gauge whether the retransmitted block (which was originally erroneously transmitted) uses a different modulation and coding scheme. Test Environment The tests were performed in the Ericsson GSM Smartphone Lab. This lab was equipped with a complete GSM network infrastructure and provides the possibility to connect a mobile terminal to the test lab network via radio communication in a non-intrusive testing way. The figure below illustrates the basic set-up of test equipment in the GSM Smartphone Lab: Equipment Used ⮚ One BSC ⮚ One BTS with one cell dedicated to GSM Smartphone Lab ⮚ One Test UE BSC (Base Station Controller) manages all the radio-related functions of a GSM network. BTS (Base Transceiver Station) controls the radio interface to the MS. The BTS comprises the radio equipment such as transceivers and antennas which are needed to serve each cell in the network. It is controlled by a BSC. ....
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....India that are essential for compliance by the defendant, however, the defendant agreed to meet on this aspect. The plaintiff thereafter gave the defendant an example list of the standard essential patents owned by the plaintiff in India. The plaintiff asked the defendant to sign a Non-Disclosure Agreement ("NDA") so as to facilitate exchange of confidential information (claim chart mapping, infringement analysis etc.) in entering into a FRAND license with the plaintiff. 23. The defendant initially refused to enter into an NDA despite which the plaintiff held various meetings with the defendant to discuss its FRAND licensing program. But despite meeting, the defendant did not enter into the NDA. 24. The plaintiff, thereafter by its letter dated 16th December, 2011, again requested the defendant to enter into a licensing agreement with the plaintiff on FRAND terms for the SEPs portfolio of the plaintiff. The defendant in its reply letter dated 19th January, 2012, at the first instance, submitted before the plaintiff that the defendant was not a manufacturer of mobile phones as it is merely selling/ trading them under its brand name and thus cannot be held liable for infringeme....
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....th March, 2014 concluded that the defendant had effectively ended the licensing talks with the plaintiff. Thereafter, certain emails/ letters have been exchanged between the parties without any fruitful outcome and the plaintiff believes that the defendant lacks the bonafide intention to execute a FRAND license. 27. The details of the revocation petition filed by the defendant before the IPAB are as follows: Original Application No. Patent No. sought to be revoked Filing Date ORA/ 25/ 2013/ PT/ MUM/ 9896 213723 23.08.2013 ORA/ 26/ 2013/ PT/ MUM/ 9892 203036 23.08.2013 ORA/ 24/ 2013/ PT/ MUM/ 10089 203034 23.08.2013 ORA/ 27/ 2013/ PT/ MUM/ 10097 203686 23.08.2013 ORA/ 23/ 2013/ PT/ MUM/ 10085 234157 23.08.2013 28. The defendant has also filed a Complaint/Information before the Competition Commission of India ("CCI") alleging abuse of dominance by the plaintiff. The said complaint was filed by the defendant on 30th September, 2014. The said complaint is registered as Case No.76/2013. Both the aforesaid proceedings were initiated by the defendant during the period when the licensing negotiations were still on-going between th....
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....s that the defendant has admitted that the plaintiff is the owner of SEPs which the said defendant uses in its telecommunication devices. 32. The plaintiff contends that even in the petitions filed before the IPAB, seeking revocation of the plaintiff's five SEPs, the defendant has alleged that all the said five patents "directly relates to the business of defendant". Thus, it is alleged by the plaintiff that the defendant's infringing device models keep changing on a frequent basis. Thus, the Plaintiff's relief qua infringement of the suit patents is against such devices that incorporate the patented technology/ system/ component/ apparatus and are not limited to specific models detailed in the plaint. 33. The plaintiff has earlier initiated the proceedings against third parties related to the suit patents. In fact, it was pointed that the two suits for patent infringement being CS (OS) No. 442 of 2013 & CS(OS) No. 2010/2013 have been instituted by the plaintiff against Micromax Informatics Ltd. and Gionee Communication Equipment Co. Ltd & Anr. and the same are pending before this Court. It is submitted that a distributor of Micromax Informatics Limited has als....
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....laintiff is instituting the present suit. 37. It is alleged by the plaintiff that sales of the defendant qua the infringing devices (handsets, tablets etc) would run into Crores of Rupees as millions of units would have been sold by the said defendant. The turnover figures of the defendant as is publicly available is as follows: YEAR ESTIMATED TURNOVER OF DEFENDANT 2007-08 335 Crores 2008-09 & Q1 of 2009-10 622 Crores 2009-10 (Q2-Q4) 443 Crores 2010-11 737 Crores 2011-12 783 Crores 2012-13 1074 Crores 38. It is submitted that the plaintiff does not have the exact sales figures and revenue details of the defendant qua the infringing models/ device/ handsets and is estimating the amount of damages it would be entitled to at Rs. 56 Crores. 39. The other relief claimed by the plaintiff is that the defendant is also liable to render accounts of sales of all the infringing products which it has imported and sold since the date of Section 11A publication in the Patents Journal of the Suit patent Applications. The plaintiff reserves its right to claim damages as per sales revenues that may be disclosed by the defendant for the previous yea....
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....same or substantially the same invention. Under the same sub-section, it also requires him to give an undertaking to the Controller that he would keep the Controller informed in writing, from time to time, of detailed particulars in respect of such foreign applications, if any of them is filed subsequent to the filing of the Indian application. Under the second sub-section of Section 8, whenever the Controller seeks details of examination of foreign applications, the patent applicant shall furnish them within the prescribed time period. The object of both sub- sections of Section 8 is to enable the Controller of Patents/ Indian Patent Office to have access to the material placed before foreign Patent Offices by the applicant. Every Suit patents have been obtained by suppression or non-disclosure of information under Section 8, thereby committing a fraud on the Indian Patent Office. (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....
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....the holder of patents that are essential to the implementation of a standard, must license its technology under mandatory contractual conditions called FRAND terms i.e. Fair, Reasonable and Non-Discriminatory terms. 43. In a complaint filed by a Philadelphia-based company True Position Inc., it has been alleged that the Plaintiff has exerted undue influence over ETSI to block other more competent technologies from being declared as essential, and to have its own unproven technologies declared as "technology standards". 44. It is submitted that a patentee who claims that his patents are standard essential has a duty to establish his claim of essentiality. The Suit patents in the present case are inconsistent with the specificity of claim-mapping endorsed and undertaken by the Plaintiff with respect to some of its own other patents. Therefore, the Plaintiff has clearly applied double standards with respect to the Suit Patents and other patents owned by it to the detriment of the defendant. Until this onus is discharged by the plaintiff, its claim of essentiality is a mere representation which has no basis in facts. Therefore, the plaintiff cannot rely on its assertion that i....
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....products were conducted in-house and were restricted only to verifying the use of AMR codecs in a 2G network. Their veracity is suspect and cannot be relied upon. The test reports at best prove that different AMR codecs/ codec schemes are used in the products of the defendant. They do not in any manner prove that any of the Suit patents have been infringed. With respect to the test reports for SID frames, which appears to have been undertaken with respect to the '723 patent, there is no proof of comfort noise generation which is central thrust of the '723 patent. The use of SID frames and comfort noise generation was well-known in 1992, much before the date of priority of the '723 patent. The test reports do not establish the specific infringement of the means used in the '723 patent since use of SID frames and comfort noise generation techniques was well-known in the prior art. It is submitted that the products of the defendant do not infringe the '723 patent. The sole basis for the allegation of infringement is the self-serving claim of the plaintiff that its so-called 3G patents are mandatory for a 3G-compliant device. As essentiality has not been established....
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....es a change in channel bit rate, e.g., the number of timeslots used to support a transmission channel." 50. Thus, multiple modulation schemes in the defendant's products is no proof of infringement of the 747 patent. A combined reading of Claims 1-4 and the Background provided in the 747 specification establishes that the mobile station or the mobile phone is merely the receiving unit, whereas the inventive step claimed in Claim 1 is performed by the base station, which is the dividing and the retransmitting means. 51. It is submitted that the defendant has never admitted to the validity, essentiality and infringement of any of the Suit patents before any forum thus far. The plaintiff's reliance on Paragraph 8.8 of the defendant's Information is misplaced as the defendant has averred that close to 80% of the so-called "portfolio of SEPs" held by the plaintiff have been adjudged as "non-essential" by independent studies undertaken by multiple institutions, which have the expertise to analyse complex issues of essentiality. It has a bulging portfolio of SEPs, the validity or essentiality of which has not been adjudged. It has furnished no evidence to demonstrate tha....
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....rely "Non- discriminatory" and "fairness and reasonableness" taking into account the prevalent conditions in the relevant market and actual financial implications for licensees. 55. The correspondence establishes beyond doubt that the Defendant cannot be branded an unwilling licensee since it is the Plaintiff's burden to prove that despite the latter's conduct and terms being fair, reasonable, and non-discriminatory, the Defendant wilfully chose to be intransigent and unreasonable by not securing a license. Since the correspondence proves that the Plaintiff's conduct was far from being FRAND-compliant, it does not lie in the mouth of the Plaintiff to declare the Defendant as an "unwilling licensee". The sole objective of denying information relating to its patents, such as a complete list of applicable standard essential patents (SEPs), claim charts establishing the essentiality of such SEPs, and their alleged infringement by the Defendant, the Plaintiff demanded the Defendant to enter into a Non- Disclosure Agreement (NDA) as a condition precedent to sharing of information with the Defendant. Despite several objections and reservations, the Defendant was left with n....
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.... Reliance is further placed on Windsurfing International Inc. v. Commission of European Committees (1986 ECR 611 at Paragraphs 89-93). 58. It is submitted by the defendant that at this stage, the law requires the Defendant to merely demonstrate the existence of a "credible challenge" to the validity of the eight patents expressly asserted in the Suit. In other words, the Court needs to satisfy itself that the challenge to the patents mounted by the Defendant is not frivolous or vexatious. This position has been settled by the Division bench of this Court in F Hoffman La Roche v. Cipla 2009 (40) PTC 125, wherein it observed as follows: "55. The question before this Court is when can it be said that the defendant has raised a credible challenge to the validity of a patent held by the plaintiff in an infringement action? During the course of the argument it was suggested by counsel that the challenge had to be both strong and credible. Also, the defendant resisting the grant of injunction by challenging the validity of the patent is at this stage required to show that the patent is "vulnerable" and that the challenge raises a "serious substantial question" and a triable is....
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....Indian patents since this goes against the territorial nature of patent rights. After all, the validity of the Indian patents must be examined within the framework of the Indian Act. Critically, in the facts of the case, the scope of Indian Patents is significantly different from the foreign counterparts. Therefore, no parity can be drawn between them. 61. This position was reiterated in Chemtura Corporation v. Union of India, (2009 (41) PTC 260 (Del.) Paragraph 33), which is extracted below: "33. The case of the Plaintiff is that since till date there has been no order revoking the patent, it should be treated as valid and therefore injunction not refused. On the other hand the Defendants rely on Section 64 read with Section 107 of the Act to contend that the challenge to the validity of the patent can be raised as a defence to a suit for infringement. The mere fact that Section 48 of the Act has been amended in 2002, does not grant any higher protection to the patent. Once the defendant is able to raise a credible challenge to the validity of the patent then injunction must be refused." The proposition laid down in Chemtura's case (supra) for denial of interim ....
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....servations of the Court of Appeals in Fujitsu: "We acknowledge, however, that in many instances, an industry standard does not provide the level of specificity required to establish that practicing that standard would always result in infringement. Or, as with the '952 patent, the relevant section of the standard is optional, and standards compliance alone would not establish that the accused infringer chooses to implement the optional section. In these instances, it is not sufficient for the patent owner to establish infringement by arguing that the product admittedly practices the standard, therefore it infringes. In these cases, the patent owner must compare the claims to the accused products or, if appropriate, prove that the accused products implement any relevant optional sections of the standard. This should alleviate any concern about the use of standard compliance in assessing patent infringement. Only in the situation where a patent covers every possible implementation of a standard will it be enough to prove infringement by showing standard compliance. In the instant case, the district court held that compliance with the fragmentation sections of th....
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....raph 5) and Pepsi Co. Inc. and Anr. v. Hindustan Coca Cola and Ors. (2001 (94) DLT 30 at Paragraph 13). Following were the observations of the Supreme Court in Dalpat Kumar : "5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean t....
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....a RAND license agreement for Motorola's H.264 (and 802.11) standard essential patents. The Motorola Asserted Patents, at issue in this litigation, are standard essential patents of the H.264 Standard and are included in Motorola's H.264 standard essential patent portfolio. Thus, Microsoft is entitled to a license to the Motorola Asserted Patents on RAND terms. As Microsoft has committed to accept a license on RAND terms for Motorola's entire H.264 standard essential patent portfolio, and the litigation is continuing to determine the details of such a license, it is now clear that at some point in the future (either by agreement of the parties or by court adjudication) a license agreement for the Motorola Asserted Patents will become a reality. Because Microsoft will pay royalties under any license agreement from the time of infringement within the statute of limitations, this license agreement will constitute Motorola's remedy for Microsoft's use of Motorola's H.264 standard essential patent portfolio to include the Motorola Asserted Patents. Accordingly, Motorola cannot demonstrate that it has been irreparably harmed. 2. Adequate Remedy at....
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.... 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. 70. At the same time, the defendant has admitted the factum of negotiations between them. In answer to the same, it is alleged by the defendant that the correspondence exchanged between the parties amply demonstrates that the defendant is not an unwilling licensee and it is the Plaintiff who has not negotiated in good faith since it withheld information necessary for the Defendant to evaluate the need to secure a licence. Many requests of the defendant related to disclosures on the following: A. Identification of the complete list of relevant p....
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....tion whatsoever. 42. That is the heart of the defendant's contingent position. In this case ZTE is not willing to be a licensee of invalid and/or not infringed patents. So ZTE is not prepared to be bound by the outcome of the determination that Vringo proposes. This raises the question of what is a willing licensee. The suggestion from Vringo was that this stance showed that ZTE was not really a willing licensee at all. 43. The concept of a willing licensee arises in this context as follows. There is what I will call a general idea (without expressing a view on whether it is right or wrong) that when a patent is an SEP, if a defendant is a willing licensee, then it may be that the patentee is not entitled to obtain an injunction against the defendant, whereas if the defendant was not a willing licensee, then the defendant may be subject to the risk of an injunction. This issue has developed in Germany and questions have been referred to the Court of Justice dealing with these issues. It arises in Germany at least in part as a result of the bifurcated procedure where a defendant in an infringement court can find itself in a position in which the patent is found....
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....and time. 53. Vringo is not suggesting that the court should decide the FRAND royalty on the basis that all the patents are all valid and all infringed. In other words, this is not a case of the first type. That could be done in theory but it is not what Vringo are asking for. And since ZTE says the patents are invalid, I can see there would be little point in that exercise. 54. I sympathise with Vringo to this extent. If both sides were willing one way, probably the cheapest and most cost effective way, of resolving the whole global case overall, would be if a single court were to do what was done in Microsoft v Motorola. In my judgment, if both sides were willing to be bound by the outcome, there is no reason why the English court could not do it. Nothing in the determination makes it intrinsically impossible for the court to resolve. It would be costly but that is a different matter; it would be less than the three trials proposed by the defendant, and less than the aggregate of that plus all the various parallel cases going on elsewhere. I gather there are cases on this portfolio between Vringo and ZTE in at least France, Germany and possibly Australia. If the....
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.... allows for adequate remuneration of the SEP-holder so that seeking or enforcing injunctions is no longer justified once a potential licensee has accepted such a process. By contrast, a potential licensee which remains passive and unresponsive to a request to enter into licensing negotiations or is found to employ clear delaying tactics cannot be generally considered as "willing". In addition, in the Commission's preliminary view, the fact that the potential licensee challenges the validity, essentiality or infringement of the SEP does not make it unwilling where it otherwise agrees to be bound by the determination of FRAND terms by a third party. In the case at hand, Motorola required clauses that prohibited such challenges by Apple, even after Apple had agreed to be bound by a third party determination of the FRAND terms. The Commission's preliminary view is that it is in the public interest that licensees should be able to challenge the validity, essentiality or infringement of SEPs." 73. It is submitted by the defendant that the royalty rate offered by the Plaintiff to the Defendant unreasonably its FRAND obligations since the Plaintiff insists on charging r....
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.... Telecommunication Standards Institute) fairly offered a license for its entire portfolio of patents (including the suit patents) which are essential for 2G and 3G technologies to defendant. However, despite being put to notice since December 2008, defendant has failed to obtain licenses from plaintiff for its Standard Essential Patents (hereinafter SEPs) including the suit patents. From 2008 onwards till the filing of the present suit, though defendant has always averred and in fact continues to state that it is willing to discuss and enter into a FRAND license with plaintiff, however the same is not reflected from the conduct of the defendant, such details are given as under : i) Despite repeated requests by the plaintiff, the defendant has failed to constructively negotiate a license agreement with plaintiff; ii) Defendant despite admitting that plaintiff is the owner of SEPs which are necessarily employed and used by defendant in various telecommunication devices (handsets, tablets, dongles etc.) being sold by it under its brand, no feasible offer has been made by defendant; 76. In reply to the case of the defendant, it is alleged by the plaintiff that defe....
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....ng sold by it in India. Thus, defendant is an infringer who is illegally earning profits to the detriment of the innovator and inventor companies in the field of telecommunication. 78. It is submitted by the plaintiff that the defendant is one of the largest mobile handset suppliers in the country. The plaintiff first time contacted defendant in 2008, it had very small market-share of the handset in India. Now the defendant has reasonable market in India in the field of mobile communication. As per plaintiff, the defendant enjoys more than 4 % market share in India. The devices (handsets, tablets, dongles etc.) which infringe all the SEPs qua a telecommunication device are being sold by defendant is not licensed to even a single SEP proprietor. Thus, it is obvious and doubtful in the contentions qua the fact that it provides 'products with high-end technology at affordable price' or that it ensures that the 'Indian consumer has access to state of the art products as per the latest global standards at affordable rates' as all the telecommunication devices (handsets, tablets, dongles etc.) which are sold by defendant. 79. During the course of negotiations, the d....
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....the numerous signed license agreements with Ericsson. 82. The plaintiff states that merely because revocation petitions were filed by defendant prior to the filing of the present suit, does not mean that no interim relief can be granted against it. It is of interest to note that though defendant seeks to differentiate its case from that of other third parties against whom plaintiff's suits for infringement of patents are pending before this Court, however identical grounds have been raised by defendant by placing reliance on exactly the same alleged prior art documents. Therefore, the act of seeking revocation of the suit patents is nothing but an attempt on part of defendant to escape its liability for infringement under the Patents Act, 1970. The validity of plaintiff's patents has been challenged on numerous occasions by infringers and unwilling licensees in different litigations across the globe, however, till date none of the patents of plaintiff have been revoked. 83. It is also denied by the defendant that the plaintiff has corresponded with defendant since 2008 and parties made many efforts for licensing plaintiff's patents. The complete summary of the cor....
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....ncerns over the jurisdiction clause of NDA on the ground that Intex is not in a position to afford costs of proceedings in Switzerland. 10th February, 2009 Email from Ericsson to Intex wherein in order to address Intex's concern on the jurisdiction of the NDA - neutral countries like England, Wales and Switzerland were proposed. 17th February, 2009 Email from Intex to Ericsson wherein it is stated that India be considered as the territory governing the jurisdiction of the NDA and New Delhi as the venue for arbitration proceedings. 17th February, 2009 Email from Ericsson to Intex wherein it is stated that it would be preferable to have a neutral venue as jurisdiction and Singapore was suggested. 24th February, 2009 Email from Ericson to Intex seeking its advise to address the issue of NDA so as to enable the parties to move forward. 27th February, 2009 Email from Ericsson to Intex wherein a conference call is proposed to discuss the issue of jurisdiction of NDA. 5th March, 2009 Email from Ericsson to Intex highlighting that Intex did not confirm its participation for the conference call on 5.3.2009. A response on the issue of jurisdiction of t....
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....here has been minimum correspondence between the parties and any grievance on the part of Ericsson suffers from substantial delay. It was stated that Intex does not manufacture mobile phones or their components/parts. It was further highlighted that Intex does not even assemble such components as a third party supplies complete products which are then sold by Intex under its trade mark. It is also stated by Intex that it has entered into specific agreements with the various manufacturing sources wherein it has been specifically confirmed by such manufacturers that the various parts/components supplied by them do not infringe the IP rights of any party. Further, such agreements specifically contain indemnity clause whereby it is the responsibility of the manufacturer and not Intex to defend any infringement proceedings. In the light of the aforesaid, plea of uninformed and innocent infringer was taken by Intex. Identical email was also addressed to Ericsson. ICA also CC'd. 26th January, 2012 Letter from Ericsson in reply to the 19th January, 2012 letter It is clarified by Ericsson that it is the company which sells infringing products under its brand that has the liability....
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.... clarity about the necessity of signing an NDA as there cannot be any confidentiality in complete specification and disclosure of acts of infringement. It was reiterated that Intex does not manufacture handsets, therefore, it is not aware of the full details of the circuit/technologies used in its handsets and would require such information which can be further disclosed to the various manufacturers from whom Intex is procuring various components. 8th May, 2012 Email address by Ericsson in reply to Intex's 7.5.2012 email It was clarified that the acts of infringement were duly explained to Intex on the basis of essentiality of Ericsson's patents and five example patents were also handed over to Intex for its review. As a result, Intex had claims of 5 patents which Intex was infringing. Further, it was stated that only qua claims charts, confidentiality was sought by Ericsson as these are Ericsson's proprietary documents. It was again clarified that liability to take a license lies with the brand owner. Intex's need to discuss the matter at hand with an outside expert especially in terms of the fact that Intex is not a manufacturer was acknowledged by Ericsson ....
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.... also stated that despite Intex's requests for commercial terms of the PLA, the same have not been provided by Ericsson till date. Thus, a request was made that before the meeting, the terms of FRAND license be provide to Intex and a request for meeting any time after 29th March, 2013 was made. In reply it is highlighted by Ericsson that commercial terms can only be discussed once an NDA is signed between Intex and Ericsson and a request was made for the execution of the same. In reply thereto, a copy of NDA was requested by Intex from Ericsson and it was stated that they are willing to hold a meeting as proposed. 28th March, 2013 Email addressed by Ericsson to Intex whereby copy of the NDA was sent and it was stated that subsequent to the signing of the NDA - the term sheet will be provided to Intex by Ericsson. 30th March, 2013 Email from Intex to Ericsson whereby the scanned signed copy of the NDA was sent wherein the venue of arbitration was changed to New Delhi. In the light of the fact that the NDA was signed, request for commercial terms was made and certain clarification was sought to the following extent: Total number of patents Ericsson intends to license ....
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....tion. However, it reiterates its objection. 18th April, 2013 Counter-signed NDA is sent by Ericsson to Intex via email and request for a meeting on 22nd April, 2013 is made in order to clarify the various questions and concerns of Intex. 23rd April, 2013 An email addressed by Intex to Ericsson requesting them to confirm the date, time and place in the next week for a meeting. In reply 29th April at 5.00 PM Intex Office is proposed by Ericsson. Further, the term sheet is also attached. 25th April, 2013 Meeting on 29th April is confirmed. However, reminders were sent about the query/ information sought by Intex in its 30th March email. 26th April, 2013 In reply to Intex query as contained in 30th March email, Ericsson states that :- Ericsson intends to license its entire 2G and 3G Standard Essential Portfolio to Intex and an example 2G, 3G patent list is provided; Due to confidentiality Ericsson refused to share third party agreements with Intex; Clarifies that the license shall be concluded on the net selling price and not on chipset basis; Again due to confidentiality, Ericsson refused to share third party agreement with Intex. However, it is clarified that ....
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....o the following extent; Will Ericsson license cover only SEPs? Whether, in the light of the disclosure on the ETSI website, any other independent body has determined the percentage of SEPs owned by Ericsson? Evidence to support the rates being offered to Intexare FRAND or not was sought. Information and clarity with respect to arrangement between ST Ericsson and Ericsson especially whether a license has been granted by Ericsson to ST Ericsson i.e. a chipset manufacturer was sought. Alleged that as Ericsson's patents are towards baseband processor only and not other parts of mobile handset, the royalty base should be towards the chipset and not the entire phone. Example of Qualcomm, Intel, Broadcom were given. More clarification was sought with respect to royalty stacking. 15th May, 2013 An email addressed by Ericsson to Intex stating that it would be better to have a face to face meeting for clarifying Intex's concerns and a meeting for 22nd May, was proposed as Ericsson's other IPR & Licensing team members will also be present. 16th May, 2013 In reply Intex states that 22nd May, 2013 would not be possible and request for 23rd of May. Further via separate....
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....at the Board Level, thus, the same were requested prior to the conference call. Claim Chart mapping was also requested. 30th May, 2013 Amended term sheet was provided to Intex by Ericsson. Further, as initially Intex has stated that they would not require claim chart mapping - confirmation was sought from Intex whether they are still needed. Reply email addressed by Intex confirming receipt of the revised term sheet. However, details for claim chart were sought. It was stated that as deliberations on the revised term sheet would require certain time, therefore a conference call in the second week of June was proposed. 4th June, 2013 Request for claim chart was reiterated by Intex. 5th June, 2013 Reply email addressed by Ericsson stating that they have initiated the process gathering of information. Further, a conference call for 12th of June, 2013 was proposed. 10th June, 2013 The day and date of conference call confirmed by Intex. Request for claim charts reiterated. 11th June, 2013 Emails were exchanged between parties to change the date and time of the conference call to 12th of June. Further, it was stated by Ericsson that it is in the process of a....
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....x. It was reiterated that as Intex is not a technological company it would not be in a position to assess the total number of patents required from different parties (who claim to be SEP holders) which are relevant for Intex products. It was also stated that Intex is unaware about its own requirement qua the 2G, 3G and WCDMA portfolio of Ericsson i.e. whether they require all the patents or only few. Accordingly, a request was made to Ericsson to help Intex in order to assess the same along with the impact of the total royalty demands on Intex. It was stated that availability of Mr. Bansal is being checked and the same will be confirmed. 19th September, 2013 Email from Ericsson to Intex It is reiterated that the license which Ericsson will be granting to Intex will be for the Ericsson's 2G and 3G portfolio which will be on a term basis i.e. any new patents which are acquired by Ericsson during the term of the patent license would also be automatically licensed to Intex. As a result the 25 patents qua which the claim charts have been provided to Intex are not the only patents which will be licensed. It was clarified that license for all Standard Essential Patents is ....
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....ith Intex, however, Ericsson cannot be expected to forego its confidentiality liability towards its licensees and disclose confidential information; A suitable time for meeting for further discussions was requested. 29th October, 2013 Email addressed by Ericsson to Intex requesting for a meeting with Mr. Bansal especially in the light of the fact that Ericsson's Director of IPR and Licensing Mr. Max Olofsson was in Delhi. 30th October, 2013 Reply email addressed by Intex wherein the following was stated :- A. Intex still awaits Ericsson's response to the query that the royalty rates should be based on the chipset value and not on the end product; B. Stated that the revised offer of Ericsson was not accepted by Intex. Ericsson was requested to revisit its revised rates after taking into consideration market realities; C. It was stated that one of the major concerns for Intex was the cumulative royalty demand which may accrue towards Ericsson and other SEP holders; D. Its request for a list of Ericsson's Indian Patents which are applicable only to Mobile phones was still awaited. It was reiterated that Intex is willing to take a license on FRAND rate and re....
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....rt of the global standards; ● For anyone implementing 2G, EDGE, 3G or LTE standards either in infrastructure or end user devices, the said standards have to be complied with; ● If the standards are not complied with, the equipment and the devices cannot work; ● The said technologies are patented technologies. The patents are thus Standard Essential Patents; ● When a patented technology forms a part of a standard, the owners of such patents makes a commitment to offer licenses on FAIR, REASONABLE & NON- DISCRIMINATORY terms to any prospective licensee qua their Standard Essential Patents; ● The fact that Ericsson has executed more than 100 licenses qua its 2G and 3G technologies at broadly the same rates indicates that the license fee demanded by Ericsson is fair, reasonable, and non-discriminatory. 86. It cannot be denied that the plaintiff has over 100 license agreements entered into with several of the major handsets/device manufacturers in the world. It has been Ericsson's practice to license its technologies on fair reasonable and non-discriminatory terms (FRAND) as per its commitment to SSOs. The....
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....oviding new and valuable technologies, lower prices, improved quality, and increased consumer choice. The DOJ and USPTO recognize that the right of a patent holder to exclude others from practicing patented inventions is fundamental to obtaining these benefits. It is incorporated into section 337 of the Tariff Act of 1930 itself, which forbids the unlawful "importation into the United States ... of articles that Infringe a valid and enforceable United States patent." As noted in the Administration's 2010 Joint Strategic Plan on Intellectual Property Enforcement, "strong enforcement of intellectual property rights is an essential part of the Administration's efforts to promote innovation and ensure that the U.S. is a global leader in creative and innovative industries." Accordingly, as historically has been the case, exclusion typically is the appropriate remedy when an imported good infringes a valid and enforceable U.S. patent. iii) Standards, and particularly voluntary consensus standards set by standards-developing organizations (SDOs) have come to play an increasingly important role in our country. 90. It is mentioned there that this is not to say that consi....
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.... with a goal to create a uniform telecommunications market in Europe. It is officially recognized by, the European Union for this purpose. Today, ETSI has more than 700 members including many of the world's leading companies and R&D organizations, and its standards are practiced globally. (CX-3941C.) Much of the work of ETSI is earned out by technical bodies called committees, which meet throughout the year, during which time the members work together to define ETSI's standards. The committees that ^e relevant for this matter are the TIA and ITU. TIA stands for telecommunications Industry Association. It is also a standard setting organization focused on the telecommunication industry. It currently has more than 500 members. The ITU is the International Telecommunication Union (ITU). TIA was involved in the development of CDMA2000 technology. CDMA2000 is a standard developed by the Third General Partnership Project 2, or 3GPP2, which was commissioned by the International Telecommunication Union (ITU). TIA is one of the five standard setting organisations involved in 3GPP2. The CDMA2000 standard was also approved internationally by the ITU. ii) InterDigital's ob....
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.... may be made subject to the condition that those who seek licenses agree to reciprocate. In the event a MEMBER assigns or transfers ownership of an ESSENTIAL IPR that it disclosed to ETSI, the MEMBER shall exercise reasonable efforts to notify the assignee or transferee of any undertaking it has made to ETSI pursuant to Clause 6with regard to that ESSENTIAL IPR (CX-2555C). it is important to note the ETSI Rules of Procedure is not a contract, but it contains rules to guide the parties in their interactions with the organization, other members and third parties. The first goal of the policy is that the IPR owner be "adequately and fairly rewarded for the use of their IPRs in the implementation of STANDARDS and TECHNICAL SPECIFICATIONS." iii) It is also important to note that the IPR owner does not agree to license the intellectual property owned under FRAND terms, but only agrees to do so under certain conditions. The agreement itself does not define what "adequate and fairy rewarded" means, nor does it provide any mechanism to determine what those words mean. The agreement in paragraph 12, Law and Regulation states: "Any right granted to, and any obligation impose....
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....to be the case in Wireless Devices with 3G Capabilities and Components Thereof, 337-TA-800. There, AU Shaw found that the asserted patents, having been declared by InterDigital, were not SEPs and were not infringed. This has happened with a certain degree of frequency in such matters. vi) In case any party creates the situation that it is outside of the framework of the ETSI agreement a situation where they use the technology that may be covered by the patent, without-having licensed it. This puts pressure on the IPR owner to settle as the owner is not compensated during a period of exploitation of the IP by the unlicensed parties. The ETSI IPR Policy requires companies that wish to use the IPR covered by the agreements to contact the owner of the IP, and, take a license. (CX-3860C.) By skipping this step, the companies that use the IPR in violation of the policy are able to exert a pressure on the negotiations with the IPR holder to try to make the agreement in the lower range of FRAND, or perhaps even lower than a reasonable FRAND rate. They also are able to shift the risk involved in patent negotiation to the patent holder. By not paying for a FRAND license and negotiat....
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.... The ETSI dispute resolution agreement does not bar any legal proceeding from the parties, but in absence of an agreement instructs the parties to look to the law of the nation where the dispute exists. When looking at this wording, it is clear that the agreement did not intend to, and does not bar any remedy as beyond the reach of the parties. Reading this paragraph in light of the previous ones makes it clear the duty required by ETSI is only one to negotiate in good faith. There are duties required under ETSI on those that would take a license as well. ix) In this case, there is no evidence that the Commission ought to go beyond the statue, and assume that the remedy of an exclusion order should be removed from the case. Neither the agreements imposed by ETSI, nor the law nor public policy requires us to offer the Respondents a safe haven, where they are free to avoid their own obligations under the agreements, can manufacture potentially infringing goods without license or consequence, can seek to invalidate the IPR in question, and yet are free from the risk of a remedy under 19 USC 1337. This one sided administration of law is against both the Administrative ....
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....4 modes of the AMR codec, 8 are available in a full rate channel (FR) and 6 on a half rate channel (HR). ● AMR was adopted as the standard speech codec by 3GPP in October 1999. 95. Learned counsel for the plaintiff has been able to demonstrate before the Court that demand of the plaintiff as royalty from the defendant is not different than from other parties. It is argued that the defendant is without any valid reason confusing the issue in the mind of the Court, otherwise there is no malafide intention on the part of plaintiff in any manner. The revised rates as offered by Plaintiff to the Defendant and the rates recorded in the aforesaid interim arrangement orders passed in the other Suits are being extracted hereunder: Rates offered to Intex Rates offered to Gionee Rates offered to Micromax Revised Term Sheet dated 29th May 2013 Order dated 31st October 2013 in CS(OS)2010/2013 Order dated 19th March 2013 in CS(OS) IN 442/2013. GSM 1.5 % 1.25% 1.25% 1.00% (inside India) 1.5% (Outside India) GPRS +GSM 2.25 % 1.75% 1.75% 1.25% (Inside India) 2.25% (Outside India) EDGE + GPRS +GSM 2.25% 2% ....
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....d by the US Patent Office in US Application No. 09/ 396,300 on April 24, 2001, September 20, 2001, March 22, 2002 and June 20, 2002 were not disclosed; and incorrect details were submitted to the Indian Patent Office with respect to the Swedish Application No. SE9803164-4. Under Section 8(2) of the Act, the Examination reports issued by the US Patent Office in US Application No.09/ 396,300 on April 24, 2001, September 20, 2001, March 22, 2002 and June 20, 2002 ought to have been brought to the notice of the Indian Patent Office since these reports resulted in reducing the scope of the originally filed US claims vide amendment to the claims filed by the Plaintiff on July 12, 2001, January 9, 2002, June 3, 2002 and August 21, 2002. Reply of the Plaintiff The priority date of IN'034 Patent is 16/09/1998 and it was filed in India on 09/03/2001. The first Form 3 disclosure was made on the date of filing of the Patent itself i.e., on 09/03/2001. In this Form 3, the details of the Swedish priority application and the PCT application filed on 24/08/1999 were duly provided. In the First Examination Report, IPO requested for details from major Patent O....
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....pplication and the PCT application filed on 06/08/1999 were duly provided. In the First Examination Report, the Patent office requested for details from major Patent Offices such as USPTO, EPO and JPO etc., while submitting the response to the FER, on 05/07/2005, Ericsson submitted a second Form 3 dated 05/07/2005 detailing that the Patent has been granted in USA, EPO, JPO and such information regarding almost 17 other countries along with the corresponding patents as granted in US and EP were provided. (C) IN IN203686 ('686 Patent) In the case of the '686 patent, following are the violations of the Plaintiff under Section 8(1) of the Act, i.e. the examination report issued by the US Patent Office in US Application No.09/ 150,046 on July 18, 2001 and the Plaintiff's response dated October 17, 2001 were not disclosed and the examination report issued by the US Patent Office in US Application No. 09/ 150,046 on January 9, 2002 and the Plaintiff's response dated April 9, 2002 were not disclosed. Both these examination reports raised material objections to the Plaintiff's patent application, and yet the Plaintiff did not deem it necessary ....
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.... mode information to reduce the bandwidth utilization associated therewith and/or permit heavier channel coding of the mode information; US '487 (IN '702) discloses and teaches use of relatively weak channel coding to protect mode information transmitted over the air interface so as to minimize the overhead bit transmission thereby maximizing user data throughput for a give resource allocation; Thus, both IN '686 and IN '702 stand on their own sound independent footing without any reliance on each other qua validity or sufficiency of disclosure. (D) IN IN213723 ('723 Patent) In the case of the '723 patent, the Plaintiff violated Section 8(1) of the Act by not bringing to the notice of the Indian Patent Office the office actions dated February 13, 2002, September 11, 2002, May 28, 2003, December 18, 2003, June 7, 2004, December 17, 2004 and September 9, 2005 issued with respect to the US counterpart of IN'723. This also amounts to violation of Section 8(2) since they were not supplied when asked for by the Indian Patent Office. Pertinently, the claim amendments undertaken by the Plaintiff in its US application on June 1....
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.... the Patent itself i.e., on 02/03/2001. In this Form 3, the details of the Swedish priority application and the PCT application filed on 24/08/1999 were duly provided. In the First Examination Report, the Patent office requested for details from major Patent Offices such as USPTO, EPO and JPO etc. While submitting the response to the FER, on 16/05/2005, Ericsson also submitted a second Form 3 detailing that the Patent is pending to be granted in USA, Europe and such information regarding almost 12 other countries was provided. Also, copies of the prosecution details from USPTO and EPO were submitted along with the said response and Form 3 on 16/05/2005. (F) IN IN240471 ('471 Patent) In the '471 patent, the Plaintiff has failed to disclose the information under Section 8(1) by not disclosing the statuses of multiple related foreign patent applications such as AR2000P102453, AT20000931815T, AU20000049635, BR2000PI10645, CN20008010364, DE20006040066, EP20000931815, ES20000931815T, JP20000619224T, TW20000108397, despite having had several occasions to make the disclosure. With respect to Section 8(2), the Plaintiff chose not to deliberately disclose the object....
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.... made by the Controller in his Examination Report dated February 10, 2004, for supply of objections and finally granted claims in foreign applications, the Plaintiff chose to not supply documents relating to PCT/ SE98/ 01593, EP98945677/ 7, AR980104755, AU9286498CA2303065, CN98809427/ 4, JP2000513423, KR87115600, MY9804371, TW87115600 and ZA98/ 8426. In other words, not a single objection report with respect to any of these 10 foreign applications was supplied by the Plaintiff to the Indian Patent Office. Reply of the Plaintiff The priority date of IN'632 Patent is 24/09/1997 and it was filed in India on 18/09/1998. The first Form 3 disclosure was made on the date of filing of the Patent itself i.e., on 18/09/1998. In this Form 3, the details of both the US priority applications were disclosed. Vide Form 4 dated 20/01/1999, further details of the PCT Application dated 08/09/1998 along with 4 other countries were duly informed to the Patent Office in the form of a statement and undertaking under section 8. Thereafter, another Form 3 dated 26/09/2002 was filed detailing inter alia the grant of the corresponding US patent and copy of the same was duly provided to....
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....to the FER, on 27/12/2005, Ericsson provided updated information regarding patent application in almost 12 countries through another Form 3 dated 27/12/2005. Copy of the granted US patent being US 6208663 was duly provided to the Controller. 101. The decision relied upon by the defendant in the case of Chemtura Corporation vs. Union of India (UOI) and Ors. has no bearing in the facts of the present case as the claims in that case were narrowed down to restrict them only to the "toroidal/torus shape of compression spring" in US and Europe. The argument of the plaintiff is that whereas the scope of claims of Indian patent was not narrowed down. Further, the claims as granted in US and EU were not provided to the Indian Patent Office. In fact incorrect and false statements were made in response to the FER issued by the Indian patent office "that there has been no further development subsequent to the Form 3 which was filed at the time of filing of the application in India. On the facts of the case it was found that narrowing down of the claims in US would have bearing on the scope of Indian Patent Claims. Claims as granted in US and Europe have been provided to the Indian Patent Of....
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....f the view that the power to revoke a patent under Section 64(1) is discretionary and consequently it is necessary for the Court to consider the question as to whether the omission on the part of the plaintiff was intentional or whether it was a mere clerical and bonafide error." 103. Section 8 of the Act is a provision, which has been enacted in India imposing an obligation upon a patentee to disclose foreign prosecution details about the corresponding foreign applications/granted patents. The purpose and object of Section 8 is that there should be full and true disclosure and that the Indian Patent Office should be fully assisted in the examination process by the proceedings in other Patent Offices. But, it does not mean that the claims granted in every country have to be exactly the same as thee may be some differences in the patents which are ultimately granted in different countries. So long as Indian Patent Office informed of all the major jurisdictions in which patents have been granted and substantial details are placed on record, the obligation of complying with Section 8 stands satisfied unless the Controller of Patents seeks some more detail(s) in order to satisfy his....
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....classes of inventions are not patentable by application of section 3(k) and 3(m) of the Act :- A. A mathematical method; B. A business method; C. A computer programme per se; D. Algorithms; G. A mere scheme of performing mental act; H. A mere rule of performing mental act; I. A mere method of performing mental act; J. A mere method of playing a game; 108. It is argued by the defendant side that all the above exceptions to patentability have the common thread of being abstract in nature. These exceptions which could be new and inventive due to their mere abstract nature and lack of practical application have been specified as non-patentable i.e. they cannot be regarded as inventions within the meaning of the Act. 109. Both parties have addressed their submissions in this regard and has also filed written note on this issue. The objection raised by the defendant in its pleadings and reply given by the plaintiff of suit patents are reproduced as under : S. No PATENT NO. THE DEFENDANT'S OBJECTION PLAINTIFF'S REPLY 1. 203686 The validity of the present patent has been challenged on....
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....and/or modulation than the one used originally, thereby significantly enhancing system performance and providing greater flexibility to cope with changes in a communication system and RF channel conditions. The fact that implementation of the invention inter alia involves decoding and analyzing the received signal block, retransmitting the data which was erroneously transmitted does not mean that the patent is nothing but an algorithm for setting a software based communication protocol between transmitter and receiver. On the contrary, the invention pertains to a highly improved transcieving unit which aids in error correction. Further, the implementation of the claimed invention not only requires hardware components necessary for decoding and analyzing the received signal block, but also involves other components and elements used for retransmitting the data which was erroneously transmitted, apart from storage blocks which would have to register the modulation or coding scheme by which first transmission happened, SO that the subsequent transmission of the erroneously transmitted block is done via different modulation or coding scheme. 3. 234157 It has been alleged....
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.... and for synthesis loop on the decoder side. 4. 213723 It has been alleged by Intex that the said patent deals with signal processing which is technically implemented in software on algorithm provided. It is also alleged that the claimed invention relates merely to mathematical equations which have been detailed in the complete specification itself. The IN'723 claims an apparatus and method of generation of modified comfort noise parameters on the basis of variability information associated with the actual background noise by using a modifier that has been specifically designed by the Plaintiff. It is of importance to note that for the purpose of encoding, modulating, transmitting and decoding speech/noise - electrical signals are used wherein all the aforesaid functions are performed by various hardware and network elements (encoder, modulator, transmitter and decoder) whose operations are controlled by way of certain pre-defined sets of instructions. These instructions which may use mathematical calculations are being termed as an algorithm by the Counter Claimant. However, it is pertinent to note herein that these instructions are not mere abstract algorithm....
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....on of Intex that the apparatus which has been claimed vide claims 8 to 14 is merely a computer programme executed on a processor i.e. a digital signal processing chip. Specific reliance has been placed on the allegation that Intex has itself admitted that the functionality of the algorithm search block and vector quantizer is implemented as one or more several micro processors or micro/signal processor combination. The novelty and inventive step of IN '034 resides in a 'Linear Predictive Analysis-by-Synthesis (LPAS) encoder' specifically developed and designed by the Plaintiff and the manner in which coding of plurality of consecutive sub-frames is performed by it. In order to perform the aforesaid function, the claimed encoder necessarily requires several hardware components to perform the 'determination of optimum gains', 'vector quantization' and 'update of internal encoder states' etc. The fact that while performing the aforesaid functions inter alia certain pre-determined guidelines are followed does not mean that the claimed invention is a mere algorithm or a computer programme per se. It is of importance to note that the term '....
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....is not patentable as per Sections 3(k) and 3(m) respectively. The invention of the IN '471 patent relates to a mobile radio station and its use in a mobile radio communication system wherein the mobile radio station acts as a flexible and adaptive measurement tool for radio network control so as to provide reporting of radio related parameters based on satisfying predetermined events or conditions, which enables the radio network to promptly and effectively respond to the changed conditions and perform necessary operations. It is pertinent to state herein that the reference to the terms like pre-determined conditions' or 'event triggered signaling' cannot be used to obviate the fact that the invention in fact makes use of the mobile station to measure, evaluate and signal to the radio access network the handover-related parameters for a plurality of cells which necessarily means that the mobile hardware is being used to bring about a technical effect or to perform a technical process and therefore, it is incorrect to argue by Intex that the claimed invention is an algorithm or computer program per se or even a mathematical method or formula as contemplated und....
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....he protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement. ii) The provisions contained in Indian statute under Sections 3(k) and 3(m) are not new in the field of patent law as equivalent provisions exist in other jurisdictions including European Union, UK etc. Such exceptions have also been read in the US Patent Law by way of judge made law. It is a consistent international practice to exclude from patentability most of the categories of inventions enumerated hereinabove as contained in sections 3(k) and 3(m) of the Act. It would be necessary to review the legal position qua these exceptions in the other jurisdictions. iii) POSITION IN THE EUROPEAN UNION The European Patent Convention consists of exceptions to patentability under Article 52. The said Article is reproduced hereunder :- Article 52 - Patentable inventions: (1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive ste....
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....hese numbers may represent) and provides a result also in numerical form, the mathematical method or algorithm being only an abstract concept prescribing how to operate on the numbers. No direct technical result is produced by the method as such. In contrast thereto, if a mathematical method is used in a technical process, that process is carried out on a physical entity (which may be a material object but equally an image stored as an electric signal) by some technical means implementing the method and provides as its result a certain change in that entity. The technical means might include a computer comprising suitable hardware or an appropriately programmed general purpose computer. 6. The Board, therefore, is of the opinion that even if the idea underlying an invention may be considered to reside in a mathematical method a claim directed to a technical process in which the method is used does not seek protection for the mathematical method as such. ...................... 8. Rule 29(1) EPC requires that the claims shall be drafted "in terms of the technical features of the invention". The Board considers that this condition is met if the features ment....
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....sion Benefits System Partnership (Case No. T 931/95). In this case, the Board held that an apparatus constituting a physical entity or concrete product suitable for performing or supporting an economic activity is an invention within the meaning of Article 52(1) EPC. In this judgment the Board held that the invention should have a technical character in order to qualify for protection. The test laid down in this judgment was a departure from the VICOM test. Thereafter, the Board again considered interpretation of Article 52 in Hitachi, Ltd. (Case No. T-0258/03), reiterated the technical character/feature test) and subsequently in Microsoft - Clipboard Formats I (Case No. T 0424/03) judgment. In the Microsoft judgment the invention related to the use of clipboard for data transfer. The test of use of technical means was reiterated and it was held that a computer sytem including a memory (clipboard) is a technical means and the claimed invention has technical character. It was further observed that even though a method of operating a computer may be put into practice with the help of a computer program, a claim relating to such method does not claim a computer program in the category....
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.... things as such. The above provisions follow Article 52 of the European Patent Convention with two changes. It expressly excludes copyrightable works such as literary and artistic works. Further, the words "to the extent that a patent or application" has been added, which clarifies that the nature of exclusion is extremely narrow. Thus, the excludable subject matter as defined by aforesaid provision of the UK Act is narrower as compared to exclusion contained in Art. 52 of the EPC. However, as per the case law, Article 52 and Section 1(2) have been interpreted to be of the same scope and application. 115. In UK, one of the earliest judgment which discussed the excluded inventions exception was Genentech Inc's Patent, [1989] R.P.C. 147 patent. This judgment primarily followed the principles laid down in the VICOM decision. In the Genentech Inc's Patent, the inventions related to Recombinant-DNA technology (r-DNA). Thereafter, the said provision came up for discussion in Merrill Lynch's Application, [1989] R.P.C. 561, which deals with a business method patent application. After a detailed analysis of Article 52 and Section 1(2), the Court of Appeal relied upon Genen....
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....cided by considering what task it is that the program (or the programmed computer) actually performs. A computer programmed to perform a task which makes a contribution to the art which is technical in nature, is a patentable invention and may be claimed as such. Indeed (see Astron Clinica [2008] RPC 14) in those circumstances the patentee is perfectly entitled to claim the computer program itself. (emphasis added) The technical contribution test has again been reiterated in this judgment. In so far as the mental act exception is concerned, the Court has held as under: " ........... 43. The narrow construction is that the exclusion only excludes acts carried out mentally. On the narrow construction a claim to a calculation carried out on a computer could never be caught by the mental act exclusion because the claim does not encompass carrying out the calculation mentally. The fact that calculations in general are the kinds of thing which are capable of being performed as mental acts is irrelevant. This narrow interpretation is the one favoured by Jacob LJ in Aerotel, doubting the views of Aldous LJ on this point in Fujitsu. As Jacob LJ said (in paragra....
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....t reject software based inventions on the ground of excluded subject matter. POSITIION IN THE USA 118. In the US there are no statutory exceptions to patentability. However, by Judge made law, exceptions are provided with respect to abstract ideas to laws of nature/ natural principles, natural phenomenon and natural products. In the landmark decision of Diamond vs. Diehr, 450 U.S. 175, rendered by the US Supreme Court in 1981, held that every new and useful invention would be patentable. In State Street Bank vs. Signature Financial Group, 149 F.3d 1368, it was held that ". the transformation of data, representing discrete dollar amounts by a machine through a series of mathematical calculations into a final share price, constitutes practical application of a mathematical algorithm, formula, or calculation because it produces 'a useful, concrete and tangible result'. .". It was further observed that " ..... a process, machine, manufacture, or composition of matter employing a law of nature, natural phenomenon, or abstract idea is patentable subject matter even though a law of nature, natural phenomenon or abstract idea would not, by itself, be entitled to such protecti....
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....as a technical effect and is not merely a computer program per se as alleged by the defendant and the same is patentable. The objection raised by the defendant in the suit for infringement is not tenable, however, admittedly defendant's revocation petitions are pending, the same have to be considered on merit including the objection of Section3(k) and (m). At this interim stage, this court is not impress with the argument of the defendant that the injunction be refused on this ground. 121. Therefore, it is incorrect to allege that the plaintiff has obtained Suit Patents by committing a fraud on the Indian Patent Office over un- patentable subject-matter with unduly broad claims. The defendant has already filed revocation petitions prior to the filing of present suit, the defence raised herein cannot be considered as credible challenge to the validity of the Suit patents. However, it is always open to re- agitate and stress his objection before Appellate Board where the revocation petitions are pending. 122. The next objection of the defendant is that the question as to whether the asserted Suit patents of the Plaintiff are indeed "Standard Essential Patents" (SEPs) can on....
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....below: S. No. Patent Nos. ETSI Standards AMR PATENTS 1 - 2 IN 203034 & IN 203036 ETSI TS 126 090 V4.0.0 (2001-03) ETSI TS 126 090 V4.0.0 (2001-03) incorporates technical specifications of 3GPP TS 26.090: Universal Mobile Telecommunication System (UMTS): Mandatory Speech Codec speech processing functions; Adaptive Multi- Rate (AMR) speech codec; Transcoding functions (Release 4). 3 IN 234157 ETSI TS 126 090 V4.0.0 (2001-03) ETSI TS 126 090 V4.0.0 (2001-03) incorporates technical specifications of 3GPP TS 26.090: Universal Mobile Telecommunication System (UMTS): Mandatory Speech Codec speech processing functions; Adaptive Multi- Rate (AMR) speech codec; Transcoding functions (Release 4). ETSI TS 126 073 V4.1.0 (2001-12) ETSI TS 126 073 V4.1.0 (2001-12) incorporates technical specifications of 3GPP TS 26.073: Universal Mobile Telecommunications System (UMTS); ANSI-C code for the Adaptive Multi Rate speech codec (Release 4) 4. IN 203686 ETSI TS 145 009 V4.1.0 (2001-08) ETSI TS 145 009 V4.1.0 (2001-08) incorporates technical specification of 3GPP TS 48.009:Digital cellular telecommunications system (Phase 2+); Link adaptation (3GPP T....
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....n of 3GPP TS 03.64 V8.12.0: Digital cellular telecommunications system (Phase 2+); General Packet Radio Service (GPRS); Overall description of the GPRS radio interface; Stage 2 (Release 1999) 125. Both parties have tried to explain to the Court about technologies by using Projector on various dates. They have also provided the soft copy thereof. The defendant has also referred the prior art in order to support its averments, the plaintiff on the other hand replied to the prior art. The details of each patent referred and discussed are given as under : A. i) IN 203034 titled as "Linear Predictive Analysis by synthesis encoding method and encoder" ● The present patent relates to an improved encoder (and method of encoding) whereby - Optimum gains of plurality of consecutive sub-frames are determined and thereafter vector quantization of the said optimum gains is performed; - Such vector quantized gains are used to update the internal encoder states thereby maintaining the synchronization between the internal states of the encoder and decoder. It is the case of plaintiff that as a result, the plaintiff has been able to achieve r....
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....intly vector quantize the gains; ⮚ Maintain the same internal stages at the encoder and decoder; v) Suit patent is also registered in other countries of the world, such details are given as under : Country Application Number Patent Number Argentina 990104663 ARO21221 Australia 63757/99 756491 Brazil 9913715/1 PI9913715-1 Canada 2344302 2344302 China 99811002/7 ZL99811002-7 Finland 99951293-2 1114415 France 99951293-2 1114415 Germany 69922388.1 1114415 India IN/PCT/2001/00260/MUM 203034 Italy 99951293-2 1114415 Japan 2000-570771 3893244 Malaysia 9903570 MY122181 Republic of Korea 2001/7003364 416363 South Africa 2001/1867 2001/1867 Sweden 9803165-1 9803165-1 United Kingdom 99951293-2 1114415 United States 09/396300 6732069 vi) Prior Art a 'A8' - WO 1996/035208 titled A gain quantization method in analysis by synthesis linear predictive speech coding Defendant's Contention Plaintiff's response ● A8 hits the novelty of IN '034; ● A8 discloses a meth....
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....ficient and high quality offline multipass video editing and re-encoding is performed. Paragraph 13, i.e., introductory paragraph to the invention merely discusses digital compression system in general and does not relate to 'updating the internal encoder and decoder states. ● Paragraph 13, i.e., introductory paragraph to the invention merely discusses digital compression system in general and does not relate to 'updating the internal encoder and decoder states. ix) Prior Art 'A11' - CA 2185745 titled Synthesis of speech signals in the absence of the coded parameters - Defendant's Contention Plaintiff's response ● A11 hits the inventive step of IN '034; ● A11 discloses a method for determining of optimum gains for plurality of subframes; ● A11 teaches collective vector quantization of gains over a plurality of subframes; ● The abstract, pages 329 and 338 were referred and relied upon; ● The corresponding EP patent 0764939 of the aforesaid prior art has been referred to by the plaintiff itself in the background of the complete specification; ● The 'novelty', 'inventive st....
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....the conventional methods tend to solve the above problem by using a different coding mode, e.g., energy matching for unvoiced speech and background noise i.e. multi mode coding. However, the conventional multi-mode coding suffers from the drawback of mode decision, i.e., choosing between the waveform matching and energy matching, which is a sensitive decision and causes annoying artifacts when wrong, leading to unwanted sounds and noise like bursts. iv) The plaintiff has stated in the complete specification of the suit patent that multi-mode coding techniques for different type of speech/noise signals were known. However, the manner of adaptively and smoothly combining the waveform matching and energy matching whereby the drawback of mode decision can be overcome - was not known and the same is taught by the novel speech encoding and transceiver apparatus as claimed. v) It is claimed by the plaintiff that the invention is a novel speech encoding and transceiver apparatus that use a new speech coding criteria which softly combines the waveform matching mode (for coding speech signals) and the energy matching mode (for coding noise-like signals) by using a suitable ....
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....speech signal to obtain a total error irrespective of signal type. Abstract of EP '832 was read; In, A10 envelope signals are compared in order to compute envelope error evaluation values and the envelope error Rij, which is not an energy parameter as it is the envelope error summed up over all samples in the frame, thus still sensitive to phase (time) shifts (waveform error). A10 does not deal with the issue of improving noise like signals at lowered bit rates without the disadvantages of multi-mode coding. Further, A10 is extremely complex and difficult to implement and does not contain enabling disclosure qua the balancing factor'. A10 does not anticipate IN '036 as it relates to a speech coding device that seeks to improve the quantization process by reducing the error between the original speech signal and synthetic speech signal in a different and less efficient manner. viii) With respect to Prior Art 'A11' - Article titled "Code Excited linear Prediction CELP High Quality Speech at Very Low Bit Rates" referred by the defendant and the response given by the plaintiff reads as under :- Defendant's Contention Plaintiff's....
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....any balancing between the different error criteria, as claimed by IN '036 patent. x) With respect to Prior Art 'A13' - US 5787391 titled "Speech Coding by Code-Edited Linear Prediction referred by the defendant and the response given by the plaintiff reads as under :- Defendant's contention Plaintiff's response A13 renders IN '034 obvious in nature. A13 merely describes a conventional LPAS (linear predictive analysis-by-synthesis) system where the main problem being solved by the alleged prior art is providing robustness (tolerance) to transmission bit errors where waveform coding criteria is used even for noise/unvoiced intervals in the speech. A13 discloses a coding apparatus for quantizing parameters such as spectral envelope information and power information as a unit of frame operation comprising a plurality of samples of speech data. Unlike IN '036, which uses a combination of coding criterions used to effectively and adaptively code voice-like and noise-like signals, A13 always minimizes only the waveform error criteria. C. IN 213723 i) The invention in Patent No. 213723 relates generall....
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....rated in the active mode i.e. when the speaker was talking and speech signals, along with the background noise, was being transmitted. vi) In order to raise the objection of prior art urges that it is because the comfort noise parameters are not sent to the receiver as often as the speech frames, but rather are sent as an averaged value for several frames, which is necessary in order to save battery life by consuming lower power; and to increase system capacity by reducing the transmission of SID frames wherein comfort noise generation parameters are encoded. vii) In order to solve the problem of 'static comfort noise', the conventional approach which existed simply increased the update rate of DTX comfort noise parameters. However, the same is undesirable since it leads to increased battery consumption and decreased system capacity. Thus, the static background noise was accepted in the prior art. viii) It is submitted by the plaintiff that the suit patent claims a method and apparatus for generating modified comfort noise parameters (using a modifier) which are in turn used for generation of comfort noise by: (a) providing to the modifie....
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.... been extracted from the main body of the document. A6 only discusses the conventional comfort noise generation method. xi) With respect to Prior Art Document A7 - EP0843301 titled "Methods for generating comfort noise during discontinuous transmission" published on May 20, 1998 referred by the defendant and the response given by the plaintiff reads as under :- Defendant's contention Plaintiff's response A7 hits the novelty of IN '723; No details about how EP '301 hits the novelty of IN '723 have been disclosed as merely certain portions have been extracted from the main body of the document. A7 discloses 'modifying comfort value parameters using background noise' The Defendant is seeking to mislead this Hon'ble Court by portraying its own averments and contentions as excerpts contained in EP '301. Further, there is no figure 4c in EP '301. EP '301 does not disclose anywhere generation of modified comfort noise parameters based on the variability information of the actual background noise parameters. EP '301 rather solves another problem generally associated with comfort no....
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....of a signal takes place on the basis of such codes (that are stored in a codebook) and their selection. It was also argued that there can exist many ways of selecting codes from different codebooks which can be either probabilistic or deterministic. In this suit patent, selection of codebook is independent of signal type i.e. the selection is not triggered or monitored by the input at the encoder side but is performed by the receiver at the decoder side. As a result, bit rates are saved as there is no need for transmission of information from encoder to decoder. ii) The validity of the patent is challenged inter alia on the ground that :- (a) CELP encoder is known; (b) Existence of multiple codebooks is known; (c) Selection of codebooks in a CELP encoder is known; (d) The only contribution of the invention is 'deterministic selection process' which is nothing but a computer program/algorithm. iii) The present invention relates to a multi-codebook fixed bitrate Code-Excited Linear Prediction (CELP) signal block encoding/decoding method and apparatus and a multi- codebook structure. The plaintiff submits that in t....
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....s to be used, required necessary transmission of mode information from encoder to decoder in order for the decoder to use the correct decoding mode thereby requiring extra bandwidth. Similarly, in the systems where such mode information was implicitly transferred as a result of adaptive codebook gain parameter, the coding in such systems/methods were sensitive to bit errors in the gain factor caused by the transfer channel. As a result, a need was felt to develop an encoder/decoder that can overcome all the aforesaid drawbacks/disadvantages. vii) A multi-codebook fixed bit rate CELP signal block encoder/decoder and a method of its operation consisting of: selecting, for each signal block, corresponding codebook identification in accordance with a deterministic selection procedure that is independent of signal type; and encoding/decoding each signal block by using a codebook having said selected codebook identification. viii) The method/apparatus as disclosed and claimed by the subject patent : - Several different equal size codebooks are used; - Each codebook is weak for some signals and this weakness is not shared by any other codebook; ....
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....s a 'pitch based' (to differentiate between male and female voice) codebook selection which is not independent of signal type. Defendant has itself admitted that the selection procedure of the codebook as disclosed in EP '494 is based on the input parameters of signal type EP '494 discloses a similar codebook selection process as claimed in IN '157; The requirement of sending mode information/parameters continues to persist along with the prevalence of sensitivity to bit errors in EP '494 Pages 2373-2374 were read and relied upon; Thus, the solution proposed in EP '494 is not independent of signal type and necessarily needs transmission of the signal related parameters for selection of codebook and therefore, belongs to the category of coding methods whose disadvantages are overcome by the invention of IN '157 patent; xi) With respect to Prior Art Document A10 - Article titled "A 1.6 Kb/s MELP Coder for Wireless Communication", published in IEEE Workshop on speech Coding for Telecommunications Proceeding, held in September 1997 (McCree) granted to the plaintiff referred by the defendant and the response given by the p....
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....he subject patent for practical utility and thus there is inherent anticipation. In A11, a signal type dependent adaptive codebook gain codebook selection method has been described and emphasis is laid on having different restrictions for voiced and unvoiced speech signals. Even the Defendant has admitted that A11 discloses a codebook selection process that is dependent on signal type. Further, the codebook selection as per A11, based on voiced and unvoiced signal, will be sensitive to voiced gain determination and to bit errors in the adaptive gain value and also to frame-error/frame-loss of the previous frame. On the other hand, IN '157 enables selection of codebook independent of signal type and involve also does not prediction/selection of codebooks based on gains stored in previous sub-frames thereby removing any dependence on gain factors and hence in turn overcoming the sensitivity to bit errors. xiii) With respect to Prior Art Document A12 - Article titled "Ultra-fast CELP Coding using Deterministic Multi- Codebook Innovations", published in 1992 (Daniel Lin) granted to the plaintiff referred by the defendant ....
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....nation, (b) Mode requests (MR): which reflect the receiver's request for a particular speech coding/channel coding mode to be employed. These MI & MR bits are communicated between transmitting and receiving entities to enable variable codec mode operations. Further, they are communicated continuously during the lifetime of a connection, depending on the varying channel condition. iv) The suit patent corresponds to and the same is granted in other countries, the details of which are mentioned below :- Country Application Number Patent Number Australia 63767/99 767613 Brazil PI9913758/5 Canada 2343057 2343057 China 99814439-8 ZL99814439-8 European Patent 99951303.9 European Patent 10181600.7 India IN/PCT/200100324/MUM 203686 Japan 2000-570931 3834477 Mexico 2001/002701 230774 Republic of Korea 2001/7003340 669271 Russian Federation 2001110094 2231227 Singapore 200101391/1 79573 South Africa 2001/1998 20011998 United States 09/154,046 6452941 v) It is averred that the following objectives are achieved by th....
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....ion has the advantage of being less complex, however, A10 states that exchange of mode information has the disadvantage of taking up large part of available band width for signaling purpose The suit patent solves the above mentioned disadvantage of occupying bandwidth by decimating the rate of transmission of MR/MI. ix) With respect to Prior Art 'A11' - WO/1995/028814 titled "Air Interface Adapting Method for a Mobile Radio System", published on 26th October, 1995 (its US family member being US6134220, published on Oct. 17, 2000) referred by the defendant and the response given by the plaintiff reads as under :- Defendant's contention Plaintiff's response A11 hits the novelty of IN '686; In view of A11, the invention as disclosed and claimed cannot be regarded as novel in nature; A11 does not deal with the issue of reducing overhead bits by decimating the transmission rate of MR/MI; A11 teaches how to select an optimal transmission mode (coding mode/allocation resource combination) when a call is initialized & how to change the said transmission mode during a call depending on the changing channel conditions (eg; increase in traffic....
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....ission of MI & MR as taught by the IN 686 patent, where the MI is sent in one frame and the MR is sent in a different frame; F 3G Patent IN 229632 i) The invention in patent No. 229632 relates to mobile stations and more specifically to the ability of mobile stations to concurrently support multiple data transmission services. It claims a mobile station that processes multiple data services over a communications link between the said mobile station and a base station by grouping transmissions from various radio bearers services according to services having similar characteristics, prioritizing the services within a particular grouping and scheduling the transmission of the grouping in such a manner that set power levels are not exceeded; As a result, services with variable BER requirements and output power requirements are easily accommodated without affecting the quality of transmission. Therefore, the claimed mobile station processes multiple data services having substantially similar Quality of Service (QoS) requirements into a single logical channel. ii) It is defendant's contention that the suit patent claims multiplexing simpliciter;....
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....ents are supported. iv) It is submitted by the plaintiff that there is a Development of a mobile station that is capable of: a) Receiving and processing plurality of radio bearer services in a manner that radio bearer services having substantially similar quality of services requirements are combined into a single logical channel; b) The radio bearer services are processed by separating the data within such services into plurality of portions; c) Thereafter portions having similar quality of services requirements are then multiplexed into transmission blocks of a single logical channel; d) The number of portions per transmission block is variable; e) Portions from different radio bearer services can be prioritized such that high priority portions are transmitted prior to low priority portions without altering the transmission rate of the single logical channel f) Further the transmission blocks are scheduled in a such a manner that the output power of the transceiver remains below the predetermined level; g) Such predetermined level may vary in time; v) The Suit patent corresponds to and the same is gr....
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....report hits the novelty of IN '632 are contained in the pleadings as merely certain portions have been extracted from the main body of the document. ETSI report discloses multiplexing based on QoS requirements and sending of data on a logical channel as detailed in the suit patent; ETSI report is related to Terrestrial Trunked Radio (TETRA) technology, which is different from 3G technology and as such the said ETSI report cannot be read to assert lack of novelty in the suit patent; ETSI report is merely a 'read me first manual' and neither discloses nor teaches the claimed invention of IN '632 The said prior art hits the novelty of IN '632 Section 5.1.2 relied upon by the Defendant merely states that the MLE (Mobile Link Entity) performs inter alia quality of service selection without providing any details as to how is the same performed or what is exactly meant by 'Quality of Service Selection Similarly, the cited excerpt from Section 5.6 of the said report provides no details/explanation of any multiplexing/ combining operation, rather discusses only about how the network layer PDUs (Protocol Data Units) are mapped onto the physical la....
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....s multiplexing of all convolutional coded data (with different QoS requirements) is the only multiplexing/combining operation disclosed at a transmission apparatus in EP '875.It also means that EP '875 provides different (unequal) error protection for the different streams and the benefit of IN '632, i.e., of sending the data in single logical channel cannot be found in any manner in EP '875 G IN 240471 i) With regard to the invention in Patent No. 240471 it has been argued by the defendant despite lack of supporting pleading in its revocation petition, that the phrase 'add either a positive or a negative offset to the measured radio- related parameter as contained in claim 1 of the corresponding US patent is missing in the subject Indian Patent which has been obtained by way of misrepresentation. The above phrase is the most crucial part of the patented invention and if such offset (positive or negative) value is not added, then a smooth handover is not possible. ii) It is contended by the plaintiff that Claim 1 read with claim 12 of the IN '471 clearly indicates that the aforesaid contention raised by the defendant is false, incorrect ....
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....iv) It is also alleged that a mobile radio station having the ability to perform event-based or driven reporting of mobile station measurement, wherein: (a) the mobile radio station measures radio-related parameter/s for one or more cells in a radio access network; (b) the mobile radio station evaluates the measured radio- related parameters with respect to predetermined condition/s or event/s; (c) The mobile radio station determines that the predetermined condition/s is satisfied or that the event/s has occurred. Based on such evaluation, the mobile radio station sends a report to the radio access network thereby allowing the network to take timely and appropriate action. v) Suit patent corresponds to mandatory part of standard and the same is granted in other countries, the details of which are mentioned below :- Country Application Number Patent Number Argentina P000102453 AR025840B1 Australia 49635/00 774570 Belgium 00931815-5 1179273 Brazil PI0010645-3 ZL98809427.4 China 00810364-X ZL00810364.X Germany 00931815-5 60040066.2 India IN/PCT/2001/01411/MUM 240471 ....
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.... offset to the measured values by the mobile station Pages 731&732 were relied upon. Merely on the ground that the term 'offset' appears in the present document - IN '471 cannot be said to have been rendered anticipated in nature; Lastly, no details/proof of publication has been provided. viii) With respect to Prior Art Document 3 - GSM Specification 3GPP TS 05.08 V3.8.0, published in January 1995 granted to the plaintiff referred by the defendant and the response given by the plaintiff reads as under :- Defendant's contention Plaintiff's response GSM Specification 3GPP TS 05.08 hits the novelty of IN '471. No details about how the said GSM Specification hits the novelty of IN '471 are contained in the pleadings as merely certain portions have been extracted from the main body of the document; It discloses process, overall handover mobile station measurement procedures, Identification of neighbouring base stations for handover reporting, measurement reporting which is event triggered etc; The said GSM Specification merely discusses conventional handover technique, wherein a mobile station can be used as a measurement t....
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....andle erroneously received information, which generally include: those which aid the receiver to correct the erroneously received information, eg: FEC i.e. Forward Error Correction techniques; and those which enable information, which was erroneously received, to be retransmitted to the receiver eg: ARQ i.e. Automatic Retransmission Request techniques, where the retransmission is performed upon a request received from the receiver. iv) It is stated by the plaintiff that the conventionally known methods (including error correction techniques) used to improve communication quality suffered from various drawbacks such as: (a) only the modulation scheme could be varied (US 5577087) which in turn entailed change in channel bit rate for example the number of timeslots used to support a transmission channel; (b) In the known ARQ techniques, for retransmitting the erroneously received block, the originally selected coding scheme must be used for retransmission; (c) In the known ARQ techniques (PCT/F196/00259), if the coding scheme is changed, then it affects the entire connection rather than only the retransmitted block; ● As a result, fle....
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....5/DEL/2005 3660245 Italy 98941974.2 1010287 Malaysia 98003831 MY119573-A Mexico 2000002093 217816 Republic of Korea 10-2000-7002137 0528419 Spain 98941974.2 1010287 Taiwan 87113526 115401 United Kingdom 98941974.2 1010287 United States 08/921147 6208663 viii) With respect to Prior Art Document - US 5559810, titled "Communication of Data Reception History Information", granted to Crisler et. al and published on Sep. 24, 1996 granted to the plaintiff referred by the defendant and the response given by the plaintiff reads as under :- Defendant's contention Plaintiff's response The above prior art anticipates IN '747 as US '810 discloses each and every element of the claimed invention detailed in IN '747. However, during the course of arguments, defendant changed its stand to argue that US '810 inherently anticipates IN '747; US '810 does not anticipate IN '747 in any manner whatsoever inasmuch as it relates to an apparatus for and method for determining data reception history information; Thus, US '810 discloses: -Storing and updating data recep....
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.... '068 were read; US '068 details a solution whereby a subscriber unit transmits acknowledgement information in a packet-switched data communication system using a contention free channel access scheme in addition to providing for a base site control unit to interrupt a packet currently being transmitted in order to retransmit segments of the packet when the segments have errors with the view to save both time delay and packet delay. US '068 anticipates the invention as claimed in the suit patent when read with US '810; Thus, US '068 does not disclose a novel and inventive transcieving unit for error handling using ARQ technique by selectively dividing the blocks that were erroneously received and retransmitting them using a different FEC Coding and/or modulation than the one used originally thereby significantly enhancing system performance and providing greater flexibility to cope with changes in a communication system and RF channel conditions - as detailed in IN '747. x) With respect to Prior Art Document - EP 0350238(A3), titled 'Data Communicating Apparatus', published on January 10, 1990 by Toshio Azuma (deemed to be withdrawn on 04/08/1990 g....
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....retransmission of only that block which was initially erroneously transmitted and not the entire data length Intex has admitted at Pg. 27 of the revocation petition that US '142 does not disclose re transmission of the erroneously transmitted block using a second modulation scheme; xii) With respect to Prior Art Document - EP 0054118, titled 'Improved go-back-N Automatic Repeat Request Communication Systems', published on Jan. 9, 1985 and granted to Lin et al. granted to the plaintiff referred by the defendant and the response given by the plaintiff reads as under: Defendant's contention Plaintiff's response EP '118 read with US '810 renders IN '747 obvious in nature; In the revocation petition merely Claim 1 of EP '118 has been extracted without detailing as to how EP '118 read with US '810 renders IN '747 obvious in nature; EP '118 discloses a modified go-back-n automatic repeat request (ARQ) communication system as opposed to the conventional Go-Back-N ARQ systems; As per the EP '118 modified system along with the sequence of information blocks, error detecting check bits are also sent by the....
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....n petition that US '142 does not disclose re transmission of the erroneously transmitted block using a second modulation scheme; xi) With respect to Prior Art Document - EP 0054118, titled 'Improved go-back-N Automatic Repeat Request Communication Systems', published on Jan. 9, 1985 and granted to Lin et al. granted to the plaintiff referred by the defendant and the response given by the plaintiff reads as under :- Defendant's contention Plaintiff's response EP '118 read with US '810 renders IN '747 obvious in nature; In the revocation petition merely Claim 1 of EP '118 has been extracted without detailing as to how EP '118 read with US '810 renders IN '747 obvious in nature; EP '118 discloses a modified go-back-n automatic repeat request (ARQ) communication system as opposed to the conventional Go-Back-N ARQ systems; As per the EP '118 modified system along with the sequence of information blocks, error detecting check bits are also sent by the transmitter to the receiver where each received block is checked for apparent error and an acknowledgement signal (ACK or NAK) is sent as a result of each check....
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....lthough a part having a special function), and in no sense comprise a separate document. The body of the specification should be read first. The title is part of the specification for the purposes of construction. In reading a specification, a distinction must be drawn between introductory statements as to the purpose of the invention or the class of apparatus to which it relates and the description of the invention itself. 443. Construction of claims. A claim must be read as an ordinary English sentence, without incorporating into it extracts from the body of the specification, or changing its meaning by reference to language used in the body of the specification, even the language of a consistory clause. The specification must, however, be read as a whole because thereby the necessary background of the words used in the claims may be affected or defined by what is said in the body of the specification. The specification should be given a purposive construction rather than a purely literal one, so as to determine which features are put forward by it as the essential features of the invention and, in particular, whether persons with practical knowledge and experience of th....
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....sential Patents related to 2G, 3G technology etc. and as such enjoys a position of dominance qua the same; b) DoT requires all importers of the network equipments to abide by the various standards developed by the various Standard Setting Bodies including ETSI; c) Thus, any manufacturer/importer of telecommunication devices (mobile handsets/tablets) has to obtain licenses in respect of plaintiff's standard essential patents; d) Defendant also is necessarily required to employ such patents in its telecommunication devices (handsets, tablets etc.); 129. In Para 3.2 of the Complaint as filed before the CCI (the Complaint), it was stated that it was completely unaware about the fact if 'the components/technology contained in the handsets (of defendant) violated the patent rights of third parties, such as Ericsson. 130. In Paragraphs 8.6 to 8.8, defendant has specifically pleaded that the Standard Essential Patents (SEPs) of plaintiff, which form a part of the 2G/3G technology, are necessarily to be applied/used by any Indian telecom/mobile phone operator, in light of the notifications by Department of Telecom and the UASL Agreement thereby leavi....
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....ch claims to own over 25-35% of SEPs pertaining to the GSM Standard. As stated above, many of its SEPs are also registered under the Indian Patent Law. Therefore, in so far as the GSM technology standard is concerned, where Ericsson's patent is declared "Standard Essential", Ericsson remains unaffected by its ability to set the terms of its engagement with potential licensees. Every player in the Indian GSM market, including handset manufactures and mobile network operators who operate in GSM arena (2G, 3G and 4G) has to obtain license of Ericsson for the GSM Standard Essential Patents. 8.7 As a result of its huge portfolio of standard essential patents, for which there are NO NON-INFRINGING ALTERNATIVES, the company is in a position to operate independently of any competitive forces/ pressures in the relevant market. Based on the power of its ownership over a large pool of SEPs, Ericsson is in a position to set the terms and conditions for making its SEPs available to the customers without any constrain and thereby alter the market in its favour. 8.8 Even though Ericsson claims to own 25-35% SEPs of GSM and related technologies, the informant believe....
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....mplaint was made mainly on the plea about dominant position of the plaintiff as alleged by the defendant. Whereas, before this Court, it is being argued that none of the suit patents are either essential or valid. Thus, there is no force in the submission of the defendant that there was no admission and in fact it was merely a reiteration of the averment of the plaintiff. 134. Even in its revocation petitions filed before the IPAB for plaintiff's eight patents, the defendant has admitted that all the said eight patents "directly relates to the business of applicant". 135. Apart from the various admissions made by defendant, the plaintiff has also placed on record sufficient material in order to establish infringement, proof of essentiality of the suit patents in the form of claim chart mapping supported by an Expert Affidavit. The plaintiff has also placed on record proof of infringement in the form of test reports supported by affidavit of plaintiff's representative. On the other hand no technical/scientific material or expert affidavit has been filed on behalf of defendant to show even a prima facie case of invalidity of the Suit Patents or non-infringement of the s....
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....tain a FRAND license, meeting held between representatives of both the parties on 23rd May, 2013 that the revised rates offered by plaintiff may be acceptable to defendant. But the defendant later on took a resile from the same and initiated proceedings before the IPAB and CCI against plaintiff during the months of August and September 2013, i.e., while the licensing negotiation were still going on between the parties. While giving the impression to the plaintiff that it is still bonafidely interested in taking a license from plaintiff. The defendant never informed plaintiff that it is initiating or has initiated any proceedings before the IPAB and the CCI. 140. On one hand defendant gave the impression to plaintiff that it wanted to obtain a license for plaintiff's essential patents which were being used by it in various telecommunication devices (mobile handsets/tablets/dongles etc.) being imported and sold by defendant in India, and on the other hand it filed Complaint/Information before the CCI and Revocation Petition before the IPAB (taking two different self- serving stands). The said conduct of the defendant would show that there was no bonafide intention on part of d....
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....o relied on the English law of evidence. In Phipson on Evidence, 10th Edn., Art. 741, the English law is thus summarised: "Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself." 6. Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns 1 Macq. 212 ., the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject-matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indiasn law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other ....
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....ringed the same. Unless the suit patents are declared as invalid in revocation petitions filed by the defendant, the same cannot be allowed to be infringed by the defendant who is also unwilling to execute a FRAND licence. 148. For the aforesaid reasons, the Court is of the considered opinion that the defendant has prima facie acted in bad faith during the negotiations with plaintiff, it has even approached various fora and has made contrary statements in order to get monetary benefit. Illustratively: a) In the Counter affidavit filed by defendant in the aforesaid Writ Petition, it has been stated that the reason it was not disclosed to CCI was that the disputes in personem are of no concern to CCI which has larger responsibility to decide anti-competitive practices in rem. b) In the Written Statement filed by defendant in the present suit, it has been stated that "the institution of the revocation proceedings before the IPAB was not brought to the attention of CCI since an express clarification was sought from the Defendant from by the CCI as alleged by the plaintiff with regard to the validity of the Plaintiff's patents. c) In the Counter Affidav....
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.... "30. It has to be appreciated that undoubtedly patent creates a statutory monopoly protecting the patentee against any unlicensed user of the patented device. Thus once a violation is established in case of a registered patent, subject of course, to the patent being used, it will not be permissible to contend that the said patentee is not entitled to an injunction. A monopoly of the patent is the reward of the inventor. It is also to be appreciated that law of the patent is slightly different from the law of copyright and trademark as the patent is granted only for a period of 14 years." 152. And in case, the case of infringement is made and there is no valid defence, normally in an action for infringement of patent, an injunction is not to be refused. In the case of Strix Limited vs. Maharaja Appliances Ltd., MIPR 2010 (1) 181, it was held in para 22 and 26 : "22. It was contended by learned counsel for the Defendant that at an interlocutory stage, the Defendant should be held to have discharged its burden of raising a "credible challenge" to the validity of the Plaintiff's patent by merely pointing out the existence of the European Patent. This court is unable to....
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....ts onus. As far as the defendant is concerned, it has not produced any technical or plausible reasons as to why its devices (handsets, tablets, dongles etc.) do not infringe plaintiff's patents. It is not the case of defendant that any other technology apart from plaintiff is being employed and used in its mobile handsets/devices. The affidavit of Mr. Vijay Ghate has been challenged on the ground that it lacks credibility without giving any reasons whatsoever. The allegation made by defendant is without any valid substance and without any basis. In the absence of even an iota of proof to the contrary, plaintiff's case of infringement is made out. The defendant has failed to provide any technical analysis or expert affidavit in support of its aforesaid contentions. 155. Learned counsel appearing on behalf of defendant during the course of hearing has agreed on behalf of his client that the defendant may be agreeable to pay the royalty on the basis of chipset price, however, the plaintiff's counsel refuted the suggestion of the defendant's counsel. Rather the learned Senior counsel appearing on behalf of the plaintiff has informed the Court that the defendant is pa....
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....nd upon being asked by the court has produced 26 license agreements. Micromax has asked for agreements/offers by Ericsson with other Indian parties. After hearing submissions and perusing the rates which were contained therein, the court directs as follows: 2. The Defendants shall pending trial of the suit, pay the following rates of royalty directly to the Plaintiff for sales made in India from the date of filing of suit till 12.11.2015 : i. For phones/ devices capable of GSM - 0.8% of net selling price; ii. For phones/ devices capable of GPRS + GSM - 0.8% of net selling price; iii. For phones/devices capable of EDGE + GPRS + GSM - 1% of net selling price; iv. WCDMA/ HSPA phones/devices, calling tablets - 1% of the net selling price. 3. The Defendants shall pending trial in the suit, pay the following rates of royalty directly to the Plaintiff for sales made in India from 13.11.2015 to 12.11.2016 : i. For phones/ devices capable of GSM - 0.8% of net selling price; ii. For phones/ devices capable of GPRS + GSM - 0.8% of net selling price; iii. For phones/devices capable of EDGE + GPRS + GSM - 1.1% of n....
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.... Court, subject to Ericsson furnishing a surety bond for the exact amount in favour of Micromax, to the satisfaction of the Registrar. The banking details shall be submitted to the Registrar by counsel for Ericsson. The remaining amount shall be released to Micromax. 8. The Defendants shall continue to make payments to Ericsson as per the rates specified above on a quarterly basis for sales made after the date of this order. The defendant shall continue to give intimation to the plaintiff of the arrival of the consignments at customs and seek NOC of the Plaintiff. Post inspection, the Plaintiff will forthwith inform the Customs that it has no objection to the release of the consignment so that the consignment could immediately be handed over to the Defendants. In respect of royalty payments made by Micromax after the passing of this order, Ericsson undertakes to furnish surety bonds in favor of Micromax for the amounts received on quarterly basis with advance copies to Micromax. 9. It is made clear that the above order is purely an interim arrangement and is not a determination of the FRAND rates for the Ericsson portfolio. The defendant shall not rely upon the ab....
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.... that they are agreeable to comply the said order within four weeks, otherwise, in failure to file the said affidavit about compliance, after the expiry of said two weeks it would be presumed that they are not interested to use the technology of suit patents and to pay the royalty amount fixed by the Court. Under these circumstances, the interim orders shall operate against the defendant in the following terms :- i) the defendant, its officers, directors, agents, distributors and customers to be restrained during the pendency of the suit from manufacturing/assembling, importing, selling, offering for sale, advertising including through their and third party websites, products (telephone instruments, mobile handsets, tablets, hand-held devices, dongles etc.), including the models mentioned in paragraph 12 of this application and any future or other devices or models, that include the AMR, 3G and EDGE technology/devices/apparatus as patented by the plaintiff in suit patents IN 203034, IN 203036, IN 234157, IN 203686, 213723 (THE AMR PATENTS), IN 229632, IN 240471 (THE 3G PATENTS) and IN 241747 (THE EDGE PATENT). ii) Issue the directions to the Central Board of Excis....