Patent

The latest Xiaomi Order: Some Questions?


Thomas reported earlier today on the small breather than Xiaomi received from the Delhi High Court, after being at the receiving end of an unfortunate ex parte injunction.

Xiaomi fans in India will no doubt celebrate the fact that Xiaomi can continue to sell. However, this order leaves open some questions. For if Xiaomi has to purchase from Qualcomm (a licensee authorised by Ericcson), wouldn’t the doctrine of patent exhaustion apply? As I noted in an earlier post here, once the patent rights in the chipset are exhausted, then Ericsson cannot demand any more royalties from a party that merely inserts the chipset into a phone. In which case, why pay at all? Or have I missed something here?

And even assuming the payment is for other patents that may be outside the Qualcomm chipsets and could be independently infringed by Xiaomi, how did the court arrive at a figure of Rs 100 per phone? This appears far higher than the per phone rate that the Micromax order of .8% royalty works out to effectively (should approximate around Rs 30 or so per phone, as I’m given to believe).

Lastly, we are given to believe that the counsel for Ericsson complained to the Delhi High Court that a certain “blog” had reported the earlier order against Xiaomi and frustrated the impact of the order. Apparently, the court responded, stating that they couldn’t stop publication of proceedings in an open court. Well done Delhi High Court! A thumbs up to more transparency.

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.

3 comments.

  1. AvatarAnonymus

    The intended impact of the order was to stop the sale of the mobile handsets. How does its reportage frustrate the impact of the same?

    Reply
  2. Avatarmanolin

    There is no bar on you mentioning the name of the senior counsel here. Go right ahead. After Jethmalani’s style of attacking the victim in court by making wild insuations, i have no respect for this bunch – they have taken ‘advocacy’ to other extreme.

    Reply
  3. AvatarRamu

    This “bunch” of prima donnas had one member who was caught on camera bribing the prosecution witness to change his stance in favour of the accused! (when this counsel I believe was himself the special prosecutor in the case- it doesn’t get more sleazy than this!!)

    Reply

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