The latest example is the case of Ramkumar, an overzealous patentee who’s claimed much more than what he legitimately invented and squeezed illegitimate royalties out of many dual sim phone importers in the process. Our earlier post focussed on a writ petition filed by Samsung claiming that the customs rules sought to be invoked by Ramkumar are constitutionally flawed, as they vest Indian customs authorities with the discretion to label even legitimate imports as “prohibited goods” without even hearing the importer. This writ petition was heard last Tuesday (March 17th), and was withdrawn by Samsung with the liberty to refile, since Samsung’s goods were allegedly seized by the Delhi customs authorities as well and Samsung wished to add this key jurisdictional component to the writ. As far as my understanding goes, the writ has not been refiled as yet.
Today, the Economic Times reports that Ramkumar obtained an ex parte restraining order against several defendants that allegedly manufacture and sell dual SIM phones in India. It states:
“The Madras High Court on Monday restrained mobile phone manufacturers Samsung, Mirc Electronics and Spice Mobile and several retailers from manufacturing and selling multiple SIM holding mobile phones.
“On a petition filed by our client Somasundaram Ramkumar, Justice Jaypaul has issued an injunction whereby Samsung Electronics, Mirc Electronics and Spice Mobile were restrained from manufacturing multiple SIM holding mobile phones,” D Ferdinand, Ramkumar’s lawyer and a partner at legal firm BFS Legal, said.
Several retailers, including online retailers Ebay India and Rediff.com and importers were also restrained from selling such phones, he added.
Earlier, Ramkumar had accused the companies and retailers of infringing his patent for multiple SIM mobile phones.
The case will be taken for hearing April 13.”
Brevity is no doubt the soul of wit. But the judge in this case (Hon Justice Jeyapaul) takes this a bit too far when he deems it fit to dispense with the matter by merely stating that:
“Heard the submissions made by the learned counsel appearing for the applicant….
The applicant has produced Patent Certificate granted on 11.2.2008 for the invention of Mobile Phones with plurality of Sim Cards allocated to different communication networks:
…Therefore, there shall be an order against respondents 1, 4, 6, 7, 8, 10 and 11 that they shall not engage in manufacturing dual or plural sim card phone India till 13.4.2009.”
(please note that these are reproductions of the key parts of the order, a certified copy of which is still not available).
Given that this was an ex parte restraining order against several defendants, shouldn’t his Lordship have given us some inkling of how his brain worked in assessing the scope of the patentee’s claim and the fact that the defendants products’ necessarily fell within such claims? And more importantly, as to how he assessed the case, keeping in mind the 3 factor test for grant of injunctions: prima facie case, balance of convenience and irreparable injury. Or did his Lordship assume that like him, all of us are blessed with an innate “patent” sense and sensibility. Or perhaps, this is but a manifestation of Justice Stewart’s “I know it when I see it” approach…
In a previous post, I had highlighted the fact that Ramkumar’s patent scope is rather narrow:
“In fact, in the case at hand, it would appear that the patent does not cover all “Dual SIM phones” (as Dual SIM technology itself has been around and is part of the prior art), but only those Dual SIM phones that also provide for more than one headphone/earphone jack, so that two people can be on two calls at the same time via the same handset. However, most of the goods seized by customs (consisting of both Samsung’s products and a number of other imports belonging to several Indian importers) appear to be generic Dual SIM phones with just one headphone/earphone jack. In other words, the patentee is attempting to claim rights over technology that is part of the prior art and clearly outside the scope of his patent.”
Later in the comment section, I added:
“…the essential element of the patent is the fact that you could have multiple jacks on a Dual Sim phone. And the patentee has been wrongly instigating customs to seize all dual SIM phones and not just ones with multiple jacks. Interestingly the first international search report in relation to Ramkumar’s alleged invention states:
“The search has revealed that the concept of a mobile phone having provisions for utilizing at least two SIM cards allocated to different communication networks in order to simultaneously operate said mobile phone in said different communication networks according to the subject of independent claim 1 is NOT NOVEL since a mobile phone providing the same features as claims 1 to 6 of the present application are directed to is at least disclosed in German Offenlegungsschrift DE 199 19 389 A1 (SIEMENS AG) 2 November 2000.”
Perhaps after the parties are heard, the judge may come to realise the folly of his “innate” patent sense!
On a broader note, one hopes that our judiciary will refrain from readily assuming that an ex parte philosophy that evolved in the context of trademark counterfeiting and copyright piracy cases could just as easily be transposed to patent cases, where issues of validity and non infringement are often raised.