Affidavit evidence cannot be entertained unless the Court passes an order for sufficient reasons that any particular fact or facts may be proved by affidavits. The question as to when interrogatories by way of an affidavit can be entertained by Court to prove the facts of the case was examined by High Court of Delhi, containing Justice Asha Menon in the matter of Koninklijke Philips N.V vs. Vivo Mobile Communication Co. Ltd. & Ors. [CC(COMM) 4/2021] on 07.01.2022.
Facts of the case are that the defendants were infringing five of plaintiff’s patents and it was stated that the suit patents relate to four different technologies used in the field of telecommunications namely, (i) Universal Mobile Telecommunication System (UMTS) technology, (ii) HighSpeed Packet Access (HSPA) technology, (iii) Evolved High-Speed Packet Access (HSPA+) technology and, (iv) Long Term Evolution (LTE) technology. These are all technologies which the plaintiff claims have been standardized by Third Generation Partnership Project (3GPP) and adopted by various standard setting organizations (SSOs)/Standard Development Organizations (SDOs) including European Telecommunications Standards Institute (ETSI). It was also claimed that in India too, these are the prescribed standard essential patents, which are usually exploited by manufacturers/importers, including the defendants. The suit has been filed seeking a decree of permanent injunction to restrain the defendants from manufacturing or assembling, importing, selling, offering for sale, advertising including through their and third party websites, mobile phones including the models mentioned in the plaint and any future or other devices or models, that include UMTS enhancements (HSPA, HSPA+) and LTE technologies and result in infringement of the suit patents until the defendants have procured Fair, Reasonable and Non- Discriminatory (FRAND) license from the plaintiff. Inter-alia, damages have also been sought for the past use of all the patents including those that have since expired.
The Counsel for the plaintiff submitted that the defendants in their written statement have stated that they were not liable to make any payment to the plaintiff even under FRAND and as they had obtained their chipsets from Qualcomm and MediaTek, and that the defendants were not liable for any infringement. It was submitted by the plaintiffs that the interrogatories were therefore, to be allowed and the question of its relevancy need not be considered at this stage.
The Counsel for the defendants submitted that an application under Order XI Rules 2 & 14 CPC as amended by the Commercial Courts (Amendment) Act, 2018 read with Section 151 CPC cannot be routinely allowed and the court had to consider whether the answers and documents sought were necessary for the determination of the dispute. It was submitted that since it was the case of the plaintiff that their patents were standard essential patents, it was necessary to disclose and explain every stage of such mapping of the industry standards with their patents. The burden was on the plaintiff to prove its case and the onus could not be shifted by asking questions that also infringed on industry confidentiality, by means of the present application.
It was held by High Court of Delhi that it is for the plaintiff to map their patents on to the standard essential features would also be settled by the production of this agreement, as it would be evident as to whether the patents work on the chipset or handset and what was the technology transferred by Qualcomm and others to the defendants. However, as suggested by the defendants for production of third-party agreements by the plaintiff, to determine FRAND, a confidentiality club can be constituted even in respect of these agreements. With regard to the interrogatories, the interrogatories seem to be not leading anywhere and since they have a direct bearing on the technologies used by the defendants which in turn would have a bearing on the question of infringement as well as FRAND, it is considered appropriate to direct the defendants to answer these interrogatories by way of an affidavit. The application is thus, partly allowed.
Judgment reviewed by Shristi Suman. read judgment.