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In a recent 80 page order, Justice Manmohan Singh of the Delhi High Court has, probably unwittingly, passed restraining orders in the case of L.G. Electronics India Pvt. Ltd. v. Bharat Bhogilal Patel & Othrs after the patent in question was already revoked by the Intellectual Property Appellate Board (IPAB). The order can be accessed over here. An earlier order passed in this lawsuit was also rather surprising and I’ve blogged about that order over here.
The patent in question was patent no. 189207, titled “A process of manufacturing engraved design articles on metals or non-metals”. This patent was revoked by the IPAB on the 12th day of June, 2012 (The order can be accessed over here). We had reported the decision on the blog on the 5th of July, 2012, over here. Legally India had linked up to our post on the very same day. The Delhi High Court pronounced its order on the 13th of July, 2012 i.e. almost 13 days after it had reopened from its summer vacations (close to a month after the IPAB pronounced its decision) and yet it appears that none of the counsels in the case bothered to report the decision of the IPAB to the Delhi High Court. Most IP lawyers usually track corresponding litigation, through ‘watching briefs’, before other forums or the same forum in order to keep themselves updated. Therefore although the revocation petition before the IPAB was not filed by L. G. Electronics, it is likely that L.G. was keeping an eye on the proceedings before the IPAB. In the circumstances, I fail to understand how the Delhi High Court was not informed of such an important decision of the IPAB which would render the entire proceedings before the Delhi High Court null and void. It is a pity that valuable judicial time has been splurged on this 80 pages when the patent was already revoked.
In my view, the above error is not the only error in question. The other troubling error being, that the Delhi High Court has allowed the Plaintiffs in question to sue the Customs Commissioners in a civil law suit! Before explaining the error, let me briefly explain the relief sought for in this lawsuit.
The cause of action for the present lawsuit was a show cause notice received by L.G. from the Customs Commissioners (under the IPR (Imported Goods) Enforcement Rules, 2007) with regard to potential infringement of patents held by Bharat Bhogilal Patel. In response to this notice, L.G. filed a suit for declaratory relief before the Delhi High Court. A declaratory lawsuit in a patent infringement case basically asks the court to adjudicate the point of whether a certain patent is being infringed. So far, so good.
The twist in the tale comes when the Plaintiffs named 2 Customs Commissioners (Imports) as a Defendant No.2 and No. 3. This aspect gets even more twisty when Justice Manmohan Singh does not raise any objection to the inclusion of both these authorities as defendants in the lawsuit.
The Customs Act, 1962 like most other legislations provides sovereign immunity to all government officers carrying out official duties under the legislation. More precisely Section 155 of the Customs Act, 1962 clearly states that no suit or other legal proceedings shall lie against the Central Government for any actions taken under this Act. In pertinent part, Section 155 states:
“Protection of action taken under the Act. – (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.
(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month’s previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause.”
In my understanding the above clause expressly bars civil suits against Customs Officers and this clause was reason enough for the Delhi High Court to throw out the lawsuit in question. In my opinion, the only relief that can be sought by a person aggrieved by an order of the Customs Commissioners is to either an appeal to the customs tribunals established under the Customs Act, 1962 or to take recourse under Article 226 and 227 of the Constitution (a legislation superior to the Customs Act, 1962) and file a writ petition before a High Court. In both these circumstances the aggrieved person is challenging the decision of the statutory body on the grounds that it has not been issued as per the law. In fact in an identical proceeding, where Ericsson had initiated legal proceedings before the Customs Commissioner, the defendant had filed a writ petition before the Delhi High Court under Article 226 of the Constitution.
I am at a complete failure to understand as to how an experienced court like the Delhi High Court has passed any order in such case. Was it because the judgment was delivered on 13th Friday? Just a case of bad luck?
Further, this must be the only order in a patent lawsuit where there is no discussion on the patent claims or whether there is indeed any infringement of the patent. How does a Court pass a 80 page order in a suit for declaration of non-infringement of a patent, without in fact analysing the point of non-infringement? Well, I’ll let you read the judgment to answer that question for yourself. There are several more interesting aspects to this present case which I will cover in a subsequent post.