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!
“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.