The ongoing dispute between Vringo and ZTE has yet another update by the Delhi High Court- this time, on the scope of who is an expert under S.45 of the Indian Evidence Act.
Vringo had filed a suit for infringement of Indian Patent 200,572 against ZTE. The patent was related to making handover decisions in mobile communication systems. In February this year, an ex-parte temporary injunction was granted in favour of Vringo. In August, the injunction was vacated on the grounds that the 3 conditions of temporary injunction (prima facie case, balance of convenience and irreparable injury) were not met by Vringo (we blogged about it here). Vringo then appealed certain observations made in the order in front of a two-judge bench of the Delhi High Court.
One of the observations made by the Court was that the opinion of a management consultant in the telecommunications field could not be regarded as an “expert opinion” under S.45 of the Indian Evidence Act. The Court had reasoned that the expert ought to have had a basic degree in science, technology or engineering and also research experience. The 2 Judge Bench held that the single bench had erred in holding that an expert needs to have a specialised degree. It was held, “it is accepted and recognised that a person could be an expert in an area of specialised knowledge by experience and he or she need not hold a degree in the field of specialised knowledge. A person can also become an expert by virtue of one’s avocation or occupation.”
The Single Bench had in its order noted that the licensees of Vringo’s patent, such as NSN, Alcatel, etc were aware of the sale of products by ZTE and had not objected thereto. Vringo appealed that this observation be struck down as such observations may constitute a finding against them in the form of estoppel or waiver. However, the Two Judge Bench clarified that such a finding should not be construed as estoppel, but was only made in order to establish the balance of convenience.
The Single Judge Bench’s observation regarding who is an expert would have unduly restricted its scope under S.45, as the section does not mention educational qualifications but only requires that the person be “specially skilled” in the particular field.
It must be reiterated that the appeal was only with respect to certain observations in the Single Bench’s order, and not on merits. The temporary injunction against ZTE still stands vacated.
The order of the Two Judge Bench can be found here.
