Ramkumar’s Lawyer Threatens "Defamation" Action


Pursuant to our last post on the Ramkumar “Dual Sim” patent litigation, I received a very strongly worded letter threatening legal action against me from Ferdinand, a lawyer who represents Ramkumar.

As many of you may be aware by now, Ramkumar’s efforts to unduly squeeze moneys out of cell phone importers by misrepresenting the scope of his claims has been denounced extensively on this blog. And naturally this must have irked Ferdinand considerably.

Unfortunately Ferdinand has picked the wrong target. If he thinks that he can quell free speech through aggressive threats of initiating criminal action, he is sadly mistaken. Let it be known to him that our efforts to keep you updated on this case will continue unabated.

Ferdinand states that the comments made in my post were defamatory and has threatened to take action against me, including criminal action. I am extracting his key allegations and responding to them here:

1. Ferdinand questions my rather straightforward interpretation of his client’s patent to show that it is extremely limited in scope.

He states: “Your other comments on the Patent and the scope of the same are all juvenile.”

My Response:
I have to agree with Mr Ferdinand that my interpretation of the patent is indeed “juvenile”. For, even a mere “juvenile” will appreciate that the scope of the patent is limited and that both he and his client have taken the court, customs authorities and several innocent cell phone importers for a ride by attempting to monopolise what is legitimately in the public domain.

So let us examine the claim in question. Claim 1 of Ramkumar’s patent states:

“A mobile phone is to be incorporated with a provision for a plurality of current SIM cards and/or modified SIM Cards, a plurality of current SIM sockets and/or modified SIM sockets for accepting a plurality of current SIM Cards and/or modified SIM Cards, a plurality of headphone/earphone jacks for accepting a plurality of headphone/earphone plugs and/or a plurality of Bluetooth devices in order to operate simultaneously the said mobile phones in said different communication networks is presented, and a plurality of incoming and/or outgoing calls can be communicated simultaneously with the said respective SIM Cards.”

Please note that the “commas” between the various sections of the claim above denote the word “AND”. Therefore, it is clear 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, Ramkumar has claimed that any cell phone that uses dual SIM technology infringes his patent. In other words, he is dishonestly attempting to claim rights over technology that is part of the prior art and clearly outside the scope of his patent.

I now link to the patent specification as granted so that readers can take a look at this patent claim and judge for themselves. Even “juveniles” will appreciate the dishonest nature of Ramkumar’s claim that his patent extends to all dual SIM phones. If Roche has been fined Rs 5 lakhs for alleged misrepresentations to the court, one wonders what kind of costs Ramkumar will be finally subjected to when the courts call his bluff!

2. Ferdinand is agitated about insinuations that his firm was involved in collecting moneys from importers.

He begins by quoting from our post which states:

“Apparently, Ramkumar, his partners and his lawyers collected more than ten crores from various importers (particularly the smaller players) threatening them with litigation, if they did not pay up. They also pressurised customs authorities to block all imports of dual SIM phones, barring the phones of those importers that had paid up and obtained “clearance” letters from them”

He then alleges:

“The above passage authored by you is baseless and false. You have stated in no uncertain terms as if Ramkumar’s lawyers, viz. myself and my firm, have collected money from various importers, threatening them with litigation. This is an absolutely false statement, which we do believe you know to be false, but still proceeded to publish the same. Neither have I nor anyone from my firm, have ever been in touch with any importer, big or small, let alone threaten them with litigation. Neither have I nor anyone from my firm collected any money whatsoever from any importer. Since you have published such a statement, which you obviously know would bring down the reputation of my firm, could you produce the documents that you have to back up the false allegation you have made?”

My Response: Could I produce the document? Of course I can!

At the end of the post, I refer to an article in a Tamil daily Dinakaran, which when translated to English suggested as below:

“Vikas systems, in which both Ramkumar and Diwakaran (the deceased) were partners, was collecting payments from the importers of dual SIM phones.

It appears that of the moneys collected, Ramkumar and his lawyer, Mr.Ferdinand would get 60%, and Vikas system would get 40%.”

Ferdinand was clearly aware of our referral to the Dinakaran piece, as made evident from this statement below:

“For the record let me state very categorically that the report that appeared in Dinakaran‚ is false and I have written to them about the same.”

Well, there you have it, Mr Ferdinand. Our basis for the report was the Dinakaran piece. And the right recourse for you would be to write to Dinakaran and convince them of your bonafides in this affair and get them to issue a retraction or clarification. We promise to carry that retraction, if and when it appears. Also, I am more than happy to publish (on this blog) any clarification from your end on the veracity or otherwise of the Dinakaran piece.

Further, given that the cops are now investigating this murky affair, we’re all hoping that there will be more clarity on this issue in the months to come. In the interim, I’ve deleted the initial statement at the start of the blog that you’ve objected to, but retained the reference to the Dinakaran piece at the end, and I see no reason to remove that.

3. Ferdinand lashes out at the end, questioning my motives in exposing Ramkumar’s extortionary tactics:

I quote from his letter: “I understand that you were earlier working for the firm which is currently the Counsel on record for Samsung as well as Micromax and is thus advising them. It also appears from your blog that you are obliged to the firm and its Partners and are in fact still very close to them. I am certain that I do not need the kind of imagination you have to find out who your friends‚ are and what your ulterior motives are. Your posts and your comments on the Judge and the Madras High Court Order are now very much understandable.”

My Response: Ferdinand is understandably irked by our exposing of the extortionary tactics deployed by his client to monopolise public domain material and extract money out of cell phone importers. Naturally, when you cannot argue on the substance, you resort to ad hominem attacks. And that is precisely what Ferdinand attempts to do here. He alleges that I am motivated out of a desire to help a law firm that I used to work with before my transition to academia.

Ferdinand forgets that I have, on this very blog, critiqued decisions that went in favour of this very same law firm. A noteable example is the BMS vs Hetero case, where this law firm represented BMS and obtained an injunction from the court, where the court “expected” the Drug Controller to not grant approval. I had then critiqued this purported “drug linkage” sought to be sanctioned by the Court, arguing that it was against the law.

And so it is with Ferdinand’s case. He and his client have taken advantage of poorly drafted customs regulations and the relative lack of competence of customs officials to appreciate patent nuances. And I have come out strongly against customs officials deciding this matter without any aid from the courts. But there is a fundamental difference between earlier “linkage” cases that we had spoken out against and Ferdinand’s case. In the other cases, the merits (as to whether or not the patent was valid and whether it covered the allegedly infringing product) was arguable.

What was objectionable was the purported “linkage”–i.e. an attempt to enforce a patent right through an authority that was both incompetent and not statutorily authorised to look into such matters. In Ramkumar’s case, the matter on merits itself is highly suspect. And it is only a matter of time before courts and other authorities call them on this bluff.

The Impact of Ramkumar’s Fraudulent Claims on Small Cell Phone Importers:

One aspect that we’ve ignored in this whole controversy is the impact that Ramkumar’s fraudulent strategy has had on the small scale cell phone importers. Apparently a number of them opted to just pay up and not fight. It will be a travesty of justice if these small scale importers do not get the moneys that they paid up, when Ramkumar is finally called on his bluff.

In future posts, I will try and explore the legalities of obtaining such moneys back. Just so that Ferdinand is prevented from spinning this into a Ramkumar vs MNC (Samsung) saga, I attach some documents relating to a small time importer, Hansum India that was also hit by Ramkumar’s false claims. But this importer decided to fight back and refused to pay up. Bravo!

To conclude, let me once again repeat the message that I had outlined right at the start of this post:

If Ferdinand thinks he can quell free speech through aggressive threats of initiating criminal action, he is sadly mistaken. This blog has always taken an “issue” based approach, critiqued ongoing IP cases and exposed flaws in the law wherever they existed. We value our freedom to continue with such reporting and we think it serves a public interest. Consequently we refuse to be intimidated and will staunchly defend our rights in this regard.

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

16 comments.

  1. AvatarADS MURUGESAN

    A perfect reply with all the details involved in this case.

    The real purpose of the Patent concept itself is lost in this case.

    It seems they have tried to misuse it for gaining monetary benefit rather than for the implementation of the invention.

    Mr.Ramkumar should have gone to the court straight and should have proved that all the dual sim mobiles are infringing his patent rather than just asking the court to implement the patent rules in customs and then just asking for an interim order to stop the manufacturing and selling the dualsim mobiles making finacial hardships to all involved in this trade.

    They just want to use the TIME factor involved in getting a result for a legal fight in our courts,by asking the interim order or implementaion of patent act in customs.

    Even our customs officals could have asked Mr.Ramkumar to get it clarified from court very clearly about the infringement and then they should have started implementing it,instead of asking all the importers to prove that their products are not infringing the patent or not.And even after explaining about his claims and its meaning they didnot take any decision so far.

    They could have easily consulted a petent expert regarding this infringement.But no body knows why they couldnot give a clear written order regarding whether the imported phones are infringing the patent or not.

    The importers are the one who are real sufferers in this whole episode.

    All the mobiles phones are imported leaglly and are having IMEI numbers .So no need to thing that all the chinese imported mobiles are not having IMEI numbers or some illegal product.

    Infact with these importers only all our common people are able to have mobile phone for their use.

    Anyway great effort by this forum SPICY IP in this fight against misuse of a patent right.

    Keep it up.

    Reply
  2. Avatarmnbvcxzaq1

    Legal Construction: Syntactical Analysis

    At the very outset, let me clarify that I didn’t/don’t have any idea about the Ramkumar case. When I saw it on your website, I got curious to know its details and, hence, went on to read it fully. However, in my humble view, there is some mis-interpretation on your part regarding the claim construction, which I am going to point out hereinbelow. But before I do that, let it be clear that mine is NOT an attempt to justify Ramkumar’s conduct/claim; its not a comment on the merits of the entire case; rather it’s a limited comment (strictly restricted to author’s Section 1) regarding what should be the correct construction of his claim #1, as cited by you.
    If your citation thereof is correct, then your interpretation of the “commas” therein is based on mis-application of some basic rules of syntax/grammar. In the present context, the rule that should be applicable is as follows – if various parts/phrases/clauses in a sentence are punctuated by a series of commas and immediately followed by any conjunctive [here it is “and/or” in the first leg and “and” in the second leg], then all the preceding commas take the meaning of the immediately following conjunctive. I will illustrate this by breaking (in multi-level branching/tree) your citation of the claim and assigning each part a number, for easy comparison:

    (I) A mobile phone is to be incorporated with a provision for
    (I)(A) a plurality of
    (I)(A)(1) current SIM cards and/or
    (I)(A)(2) modified SIM Cards,
    (I)(B) a plurality of
    (I)(B)(1) current SIM sockets and/or
    (I)(B)(2) modified SIM sockets
    (I)(B)(1)&(2) for accepting
    (I)(B)(1)&(2)(i) a plurality of
    (I)(B)(1)&(2)(i)(a) current SIM Cards and/or
    (I)(B)(1)&(2)(i)(b) modified SIM Cards,
    (I)(C) a plurality of headphone/earphone jacks for accepting a plurality of headphone/earphone plugs and/or
    (I)(D) a plurality of Bluetooth devices
    (II) in order to
    (II)(A) operate simultaneously the said mobile phones in said different communication networks is presented, and
    (II)(B) a plurality of
    (II)(B)(1) incoming and/or
    (II)(B)(2) outgoing calls can be communicated simultaneously with the said respective SIM Cards.
    However, the vague placements of commas and conjunctives “and/or”, “and”, “, and”, etc. (whether it is ‘clever drafting’ or ‘imperfect drafting’, is open for discussion, but I would subscribe to the latter) is such that many alternative interpretations are possible. A few of such alternative examples are as follows:
    (I) A mobile phone is to be incorporated with a provision for
    (I)(A) a plurality of
    (I)(A)(1) current SIM cards and/or
    (I)(A)(2) modified SIM Cards,
    (I)(B) a plurality of
    (I)(B)(1) current SIM sockets and/or
    (I)(B)(2) modified SIM sockets
    (I)(B)(1)&(2) for accepting
    (I)(B)(1)&(2)(i) a plurality of
    (I)(B)(1)&(2)(i)(a) current SIM Cards and/or
    (I)(B)(1)&(2)(i)(b) modified SIM Cards,
    (I)(C) a plurality of headphone/earphone jacks for accepting a plurality of headphone/earphone plugs and/or
    (I)(D) a plurality of Bluetooth devices in order to operate simultaneously the said mobile phones in said different communication networks is presented, and
    (I)(E) a plurality of
    (II)(B)(1) incoming and/or
    (II)(B)(2) outgoing calls can be communicated simultaneously with the said respective SIM Cards.

    (I) A mobile phone is to be incorporated with a provision for
    (I)(A) a plurality of
    (I)(A)(1) current SIM cards and/or
    (I)(A)(2) modified SIM Cards,
    (I)(B) a plurality of
    (I)(B)(1) current SIM sockets and/or
    (I)(B)(2) modified SIM sockets
    (I)(B)(1)&(2) for accepting
    (I)(B)(1)&(2)(i) a plurality of
    (I)(B)(1)&(2)(i)(a) current SIM Cards and/or
    (I)(B)(1)&(2)(i)(b) modified SIM Cards,
    (I)(C) a plurality of
    (I)(C)(1) headphone/earphone jacks for accepting
    (I)(C)(1) a plurality of headphone/earphone plugs and/or
    (I)(C)(2) a plurality of Bluetooth devices
    (II) in order to
    (II)(A) operate simultaneously the said mobile phones in said different communication networks is presented, and
    (II)(B) a plurality of
    (II)(B)(1) incoming and/or
    (II)(B)(2) outgoing calls can be communicated simultaneously with the said respective SIM Cards.
    These alternative constructions are just a few examples. There are many more. Each of these constructions contain some defects at one point or the. However, the fundamental syntactical rule (as outlined in the second paragraph above) is always applicable and should always be applied, as far as practicable. In the present case, its application will be imperfect other (on account of the improper use/placement of commas and conjunctives “and/or”, “and”, “, and”, etc.). But despite its imperfect application, it appears that author’s construction/interpretation/conclusion (“Therefore, it is clear 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.”) is less plausible than the construction that existence of “and/or” imparts the meaning of “and/or” to all the preceding commas, thereby giving it the ‘alternative’ character, too. The author’s construction that all the preceding elements must be present simultaneously is less plausible than the construction that the presence of any of the preceding elements will render it covered by the claim #1. However, even this ‘alternative’ construction is not fool-proof, as it gets complicated/vulnerable due to the presence of “, and” at the end of the next following phrase/element. But despite this vulnerability, this is the least vulnerable construction. Any construction, by any person, would depend upon the constructor’s clarity (especially, syntactical) in language.
    Based PURELY on the foregoing syntactic construction only, I would not have agreed with the author’s conclusion. But there is more to it than mere syntax. I am referring to prior art. That is altogether a different factor. Since I am not knowledgable, and competent, regarding the facts (e.g. the date of filing of Ramkumar’s patent application and the status of prior arts/publications/use on that date) of the case, I would refrain from commenting on it. But if prior arts/publications/use pre-date Ramkumar’s filing, then the latter’s patent’s validity is certainly under cloud.

    Reply
  3. AvatarS. Mukherjea

    Dear mnbvcxzaq1,

    I am a patent lawyer based in Kolkata, and am working on two patent cases about claims in a patent.

    Your proposition that commas in a Claim should be read as AND goes against several principles of patent law, including the ‘All Elements Rule’ and the principle of a ‘Single Invention’.

    The ‘All Elements Rule’ dictates that each element constitutes a limitation or narrowing of the scope of the claim. A claim will not cover a product if it does not have all the elements of the claim.

    The Claim in this patent uses and/or only to provide for an option in the first integer (type of sim cards) and the second integer (type of sim sockets).

    As in, a product can have either a normal Sim card or a modified sim card; a normal sim socket or a modified sim socket and so on.

    The AND/ OR qualification cannot be used to mean that the presence of any one of the elements would amount to infringement.

    Also, consider the end result of such an interpretation–Claim 1 would cover 4 different types of products:

    (a) Any phone with more than one SIM Card; OR
    (b) Any phone with more than one SIM Socket; OR
    (c) Any phone with more than one headphone jack; OR
    (d) Any phone with more than one bluetooth device

    This would mean that there are 4 different inventions protected by this Claim. This not only makes the Claim too broad to be entitled to protection, it also goes against the principle that ONE patent can only cover a SINGLE INVENTION.

    There is an obvious policy basis to section 10 of the Patents Act, which provides for such unity of invention. If each element was entitled to protection independent of each other, then each applicant would need to make just one application to cover multiple technologies.

    This mobile phone patent has been granted for a phone which has ALL the features mentioned in the Claim.

    Regards,

    S.Mukherjea

    Reply
  4. Avatarsk

    can someone be more clear about why the claim does not cover all dual sim phones.

    my reading of this claim makes be read the claim this way….

    a mobile phone comprising (to be incorporated with a provision for)
    i. a plurality of simcards and/or modified simcards;
    ii. a plurality of simsockets and/or modified simsockets for accepting a plurality of simcard and/or modified simcards;
    iii. a plurality of headphone/earphone jacks for accepting a plurality of headfone/earphone plugs and/or a plurality of bluetooth device in order to operate simultaneously the said mobile phone in said different communication networds and communicating simultaneously a plurality incoming and/or outgoing calls with said respective simcards.

    Reply
  5. Avatarmnbvcxzaq1

    Dear All $ particlualry Dear S. Mukherjea,
    In general, I don’t necessarily disagree with your reference to the ‘All Elements Rule’ and the principle of a ‘Single Invention’. However, all the patent/legal principles are to be applied to a certain set of facts and circumstances. Whether the legal/patent principles actually do apply in the present case, and to what effect, is another matter and if I attempt such an enquiry without knowing the full case/facts, I would only be exposing my un-professionalism. In my earlier cooment, I had merely suggested the syntactical analysis, as I felt that interpretation of ‘commas’ was not correct. I hadn’t tested the claim from any other angle, especially the patent/legal angle. For example, at the end of response, i had hinted that if the claim is seen from the prior publication/use angle, the conclusion might be different from that under the syntactical analysis. Similarly, i had not at all analysed the claim from the ‘broad/narrow’ perspective.
    Having said this, I would like to disagree with your comment “The Claim in this patent uses and/or only to provide for an option in the first integer (type of sim cards) and the second integer (type of sim sockets).” Your interpretation conveniently ignores many other integers, of which the third integer (i.e. headphone/earphone jack….) and the fourth integer (i.e. bluetooth) definitely take on the colour of “and/or”, while the fifth integer (i.e. incoming/outgoing calls) is debatable due to the use of the expression “, and” which successfully creates an ambiguity regarding whether this fifth integer is a fifth additionality (i.e. “and”) to integers 1, 2, 3 & 4 individually, or whether this fifth integer is an additionality to the 1, 2, 3 & 4 en bloc, both of which will give rise to differing interpretations. In the former scheme, there arises a further syntactical confusion regarding why “and/or” was used at the end of earlier integer, thereby rendering this interpretation less plausible. What is more plausible is the latter scheme, whereby the first use of “and/or” and the later use of “, and” can be justified syntactically. Thus, in the latter interpretation, integers 1, 2, 3 & 4 are available as and/or, but integer 5 is available as an additional necessary conditionality to any one or more of the integers 1, 2, 3 & 4.
    But as I had said in my last comment, the actual interpretation of these ‘commas’, “and/or” and “, and” shall depend upon the interpretors language skills, especially the clarity on syntax and semantics.
    Again, the syntactical analysis is not necessarily antithetical to legal/patent analysis. On the contrary, they are perfectly harmonious. The extent of (often mis-perceived) harmony/disharmony is limited by the extent of one’s language skills. (Dear Mukherjea, please dont take my comments here as a personal attack. Even my interpretaion is limited by my own limited understanding of language. Even I must be having gaping holes and I am open to stand corrected.)
    Further again, let me clarify that this analysis is NOT a patent/legal analysis; rather, its an attempt to propose the use of ‘syntactical analysis’ in legal construction and/or interpretation. I have noticed that there is another article (in this blog site) on legal “construction” versus “interpretation” of claims. I intend to respond to it in another comment. In the present comment, the expressions “construction” and “interpretation” have been generally/interchangeably.)

    Reply
  6. AvatarS. Mukherjea

    Dear mnbvcxzaq1,

    The issue of syntax in a patent claim is usually quite simple. It does not really depend on the interpretor’s skills or on semantics.

    Perhaps those principles would apply in the case of statutory interpretation, where there is scope of rinterpretation on whether commas could be read as AND or OR.

    The principles of Claim construction are very different from statutory interpretation, because a Claim demarcates the scope of an invention. It is not open to the same principles of interpretation as statutes are.

    Every element of a Claim and every word used in a Claim is intended to limit the scope of the claim and narrow it down. That’s the reason I provided 4 devices that could be covered if the comma is read as an AND.

    Regards,

    Shantanu

    Reply
  7. Avatarmnbvcxzaq1

    Dear S. Mukherjea,
    Whether it is claim construction, or statutory interpretation, everything is subject to the fundamental syntactic/semantic rules of language. And that is why the constructor’s expertise in language often determines the construction that one proposes. Anyway, for me, this debate is over. I had just proposed a way. Its for the learned readers to make their choices. However, I am yet to get the author’s (of the original article) response to my comments.

    Reply
  8. AvatarShamnad Basheer

    Sorry that I couldnt respond earlier, as I had to attend a personal emergency back home.

    Thanks for all your comments. Particularly to mnbvcxzaq1 (couldn’t you find an easier name??) who claims to offer us the “most plausible” construction of the patent.

    Firstly, I think all of us need to appreciate that the alternative reading suggested above by mnb will lead to a monopoly over prior art. Let me once again reproduce the international search report comment issued against Ramkumar’s 2004 PCT application:

    ““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(02.11.00)”

    Secondly, lets go back to the claim again to understand why the allegedly most plausible interpretation offered by mnb does not really fly:

    “1. A mobile phone is to be incorporated with a provision for a plurality of current simcards and/or modified simcards (A), a plurality of current simsockets and / or modified simsockets for accepting a plurality of current simcards and / or modified simcards (B), a plurality of headphone/earphone jacks for accepting a plurality of headphone/earphone plugs and / or a plurality of Bluetooth devices in order to operate simultaneously the said mobile phone in said different communication networks is presented (C), and a plurality of incoming and for outgoing calls can be communicated simultaneously with the said respective simcards (D).”

    I’ve inserted “A”, “B”, “C” and “D” at the appropriate portions of the claim to help us analyse the specific components of the claim better. Now lets assume that a hypothetical claim read thus:

    A method of preparing fresh lime juice by adding lemon (A), water (B), sugar (C) and a pinch of salt (D).

    In this case, isn’t it obvious that the commas are to be read as “AND” and not “OR”. in other words, a person wouldn’t infringe if they just added lemon alone. They would necessarily have to combine it with sugar, salt and water. Why would Ramkumar’s claim above, which uses a similar structure read any differently. In other words, all the elements (A, B, C and D) have to be read “Conjunctively” and not “disjunctively”.

    Of course, the claim could have done with better English and grammar, as many of you have pointed out.

    Lastly and perhaps most importantly, even assuming that we change grammar rules to read the claim elements disjunctively, it is clear that such a reading would claim what is in the public domain and result in an unwarranted monopoly–which no court is likely to support.

    Reply
  9. Avatarmnbvcxzaq1

    Dear Basheer,
    Firstly, i used the name ‘mnbvcxzaq1’ because its so simple to type and one doesnt even need to remember it. Also, i needed anonymity, given the cases that i ve been handling.
    Secondly, i had simply offered a suggestion, so as to impart a flavour of dispassionate/impartial analysis of anything that we professionals undertake. I didn’t claim it to be ‘the’ construction.
    Thirdly, i don’t disagree with you at all that my ‘most plausible construction’ would have tended to bestow upon the claimant a monopoly over something. But i disagree that simply a claim construction in the claimant’s favour would have entitled him to obtain patent (or enforce infringement) over ‘prior art’, as there are several other factors (from your article, it appears that prior use/knowledge is definitely one of them) which would have disentitled him therefrom. So, the effect of one favourable thing (i.e. claim construction) would certainly have been nullified by the presence of other unfavourable factors (probably prior use/knowledge). So, there is no need to not analyse anything in a prejudiced manner. What is favourable to the claimant, must be duly acknowledged, even if it doesn’t suit the analyst’s hypothesis.

    Reply
  10. AvatarAnonymous

    Quoting patents as prior art and then claiming that art to be public domain seems somewhat oxymoronic to me. A close look at Claim 6 in 201960 might have a few defendants in the current case concerned….. there may be a few twists in this case yet to come…. the prior art may prove to be another infringed patent with the owner prepared to join the fight.

    Reply
  11. AvatarShamnad Basheer

    Anon,

    So you’re suggesting that Siemens has a patent covering dual SIM technology in India which is currently in force? Please share more details. If true, it will certainly add an entirely new twist to the story.

    I had assumed that there was no patent covering dual SIM broadly in india and consequently that this was part of the public domain in India. will wait to hear more from you.

    Reply
  12. AvatarAnonymous

    Shamnad,

    21960 is not owned by Siemens, it is owned by a wholly owned subsidiary of UK company Mobile VPT. See http://www.mobilevpt.co.uk and in particular the downloads page where the EU eqivalent with the same claims as ‘960 is available.

    It is clear on it’s face that dependant claim 6 is infringed by all the currently injuncted parties. An exclusive licensee to claim 6 of ‘960 turning up at the next hearing and asking to be joined could be exciting.

    With a 1998 priority and a current UK High Court case likely to succeed claiming much broader scope than Dual Sim…… the lack of novelty defence fly’s out the window. Defence lawyers should not be celebrating just yet. Or maybe they should….. more billing hours on the way perhaps? 🙂

    Reply
  13. AvatarShamnad Basheer

    Thanks Anon. This is very interesting indeed.

    I just had a look at the abstract etc:

    “A REMOTE COMMUNICATION APPARATUS AND AN ARRANGEMENT COMPRISING A TAKE-OFF CONNECTOR
    Application: IN/PCT/2001/00046/KOL, Patent: 201960, Publication date: 0007-02-23
    Patentee: AUSSIE LLC PTY. LTD”

    Claim 6 (as downloaded from the website you mention) reads as: ” A remote communication apparatus as in any preceding claim, further characterised in that there are sockets to receive a plurality of subscriber identification modules.

    Let me study the patent in question to find out if the phones imported by Samsung and Hansum fall within “a remote communication apparatus as in any preceding claim”. It may no doubt fall with the “plurality of sockets” part of the claim but unless it falls within the preceding part as well, it is not likely to infringe.

    More work for the defendant’s lawyers and more writing for us, I guess (unless the importers sign licensing deals with Aussie Pty). But assuming this patent covers the phones imported by Hansum and Samsung, Aussie Pty should file a separate law suit. Clubbing with existing suits where the scope of the patent is in issue may be fatal and may also fall foul of joinder principles underlying the CPC etc.

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  14. AvatarAnonymous

    Shamnad,

    I thought you would find this ‘960 interesting.
    Independent Claim 1 is of course the preceding part in question, and I will leave you to your own claim construction. Leaving novelty and inventive step aside for now, I think the scope of the Claim’s 1 and 2 may surprise you.
    Not actually sure you can make a marketable GSM phone today without falling within the scope of claim 1. I would venture to suggest that every Dual Sim phone on the market today infringes upon Claims 1,2,4,5,6,18 and 19. I wonder if Indian Customs would be prepared to hold every phone that falls within the scope of claim 1. 🙂
    Your comments in general and specifically in the context of the Ramkumar case will interest me greatly.

    An Authorized Insider

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