Patent

Ramkumar vs Cell Importers: India’s Biggest IP Case Yet?


The Madras High Court recently dismissed a writ petition filed by Ramkumar against the orders of the Customs Commissioners (in Chennai, Mumbai and Delhi). As noted in previous posts, these detailed orders by the commissioners held in favour of the cell phone importers (such as Samsung, Hansum and Spice Mobile), noting that Ramkumar’s patent did not cover “dual SIM” phones in their entirety, but only those dual SIM phones that permitted simultaneous communication as well.

Ramkumar proceeded to challenge these orders before the High Court in a writ petition. He also managed to obtain an ex parte stay of the Customs orders from the High Court. However, after a full hearing of both the parties, the court decided to hold in favour of the importers. In pertinent part, it held that the proper venue for redressal in this case was the Customs Appellate Tribunal, an authority envisaged as the appellate authority under the Customs Act. Since this efficacious alternative remedy was available, the petitioner cannot agitate the matter before the High Court, without first exhausting such alternative remedy.

Ramkumar also argued that the customs authorities had denied him the right to a fair hearing and thereby violated cardinal principles of natural justice. However, the court found that Ramkumar had been offered an opportunity of being heard by all the commissioners. He chose not to appear…and therefore it was incorrect of him to now allege that he was given no opportunity of being heard.

The Ramkumar litigation which has now spanned diverse fora including customs authorities, the Madras High Court, the Gurgaon district court, the Punjab and Haryana High Court, the Central Excise Authorities, the IPAB and the Delhi High Court is slated to become the biggest IP litigation that India has witnessed so far. Or at least the most “proliferative”.

Even assuming Ramkumar loses, he can take some pride in the fact that he spawned a landmark case and contributed in some way to India’s fledgling patent jurisprudence. Of course, the small time importers who ended up paying him huge sums without questioning his preposterous patent claims are not likely to view him in such a favourable light. If they chose to take him to court and recover moneys they paid him under a mistaken belief, we could have yet another stream of IP “compensatory” jurisprudence emerging, where makers of blatantly false IP claims are penalised by the law and forced to make good the losses.

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Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is 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 Professor Basheer joinedAnand 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. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

2 comments.

  1. Lalit Ambastha

    I am sorry to say that, but it is the case of poor drafting of patent specification and claims.

    I do agree that the Ram Kumar’s invention has the potential but it doesnt qualify the entirety of the complete invention.

    We are way behind in terms of drafting and securing the patent rights through the disclosure.

    Drafting is an essential part of the invention. What is happening is an outcome of the reverse.

    Reply
  2. mnbvcxzaq1

    well lalit ambastha, ramkumar’s patent should not have been granted in the very first place. on not one, but several grounds. its not actually a case of ‘poor drafting’. although i do agree with u that indian patentees/ patent-applicants r seriously ” way behind in terms of drafting and securing the patent rights through the disclosure”. i furthermore agree that ramkumar’s patent claims reflect poor drafting. yet the main problem with that patent is not ‘poor drafting’, but the fundamental unpatentability itself.

    Reply

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