“Disturbing Trend” Of Long Interim Orders In IPR Suits

The issue of long and delayed interim orders attracted the Supreme Court’s (SC) attention in a Petition challenging an order passed by the Delhi High Court in march this year (In M/S. INTEX TECHNOLOGIES (INDIA) LTD. & ANR.  VERSUS M/S. AZ TECH (INDIA) & ANR).

The Apex Court noticed that the order, despite being an interim order was a decision based on the merits of the case. The respondents had filed the suit seeking a permanent injunction against the appellants restraining them from using the mark “AQUA‟ in respect of mobile phones / cellular phones.

It was held by the court that improper and unexplained delay, particularly in IPR cases is fatal to an application for an interlocutory injunction.

The court notes that the interim order is virtually a decision on merits of the suit. According to the Court this is a disturbing trend which the Registrar General of the Delhi High Court should take note of. The SC has ordered the Registrar General of the Delhi High Court to report  total number of pending IPR suits, in the following manner:

  1. Divided into different categories;
  2. stage of each suit; and
  3. the period for which injunction/interim orders held/holding the field in each of the suits.

The Registrar General of the Delhi High Court will also indicate to the Court a reasonable way of ensuring  speedy disposal of the suits involving intellectual property rights which are presently pending.

 

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iBall restricted from importing handsets to India;Ericsson directed to negotiate FRAND license with iBall

The Delhi High Court restricts imports by iBall including mobile handsets and tablets in Ericsson vs. iBall interim order. This is similar to the case filed by Ericsson against Micromax, in which the court had ordered the Indian handset maker to pay royalty as an interim measure.

In the present case, it has been established in the court of law that iBall has failed to agree to sign a license agreement on standard-essential patents, required for making mobile phones and other devices. It was also established that iBall has not entered into a licensing agreement under the Fair, Reasonable, and Non-Discriminatory (FRAND) terms (covering patents on wireless technology standards such as GSM, EDGE and third generation).

Hence, on the day of the hearing on August 21, 2015, the lawyers for iBall sought time to take instructions from their client to decide if it was willing to sit with the  representatives of Ericsson and discuss the matter. However, no communication was received from iBall till September 2, 2015. iBall , in its defence also cited the recent Huawei vs ZTE decision to argue that Ericsson had not provided enough information and thus the suit could not proceed.Ericsson alleged that iBall had admitted the essentiality of Ericsson’s patents numerous times in its complaint to the CCI.

The Court, however pronounced that the suit filed by Ericsson is not premature and is maintainable. It further held that if the interim direction/order is not granted, Ericsson will suffer irreparable loss and injury for the reason that iBall will keep marketing mobile devices without the FRAND agreement and without paying royalty.It also restrained iBall from importing mobile handsets and other devices (including tablets) that infringe Swedish telecom equipment manufacturer Ericsson’s registered patents.The interim order was to become operative beginning 9th September.

However, an appeal was then filed by iBall against the interim order.The Appeal Court has directed the parties to try and reach a settlement in about 2 weeks.Ericsson has been directed to negotiate a FRAND license with iBall only for its Indian patents at this stage.The operation of the interim injunction has now been postponed till the next date of hearing as well.The appeal was re-notified to September 21, 2015.