Intex Technologies V. T.l.m. Ericsson
First judgment in India dealing with SEP issues from a Division Bench. Court has laid down the test to seek interim injunction in SEP matters viz. assess prima facie (i) whether patent is infringed, (ii) whether defendant is an unwilling licensee and (iii) whether SEP Owners royalty offer is on FRAND terms. Court has also held that injunction, interim or final, can be granted based on infringement of a single patent from the whole portfolio.
“…though in Unwired Planet v Huawei (supra), the UK Supreme Court did not grant an injunction until after the FRAND trial, yet this court is of the view that the Courts can and should do so before the trial.”
Court has also held that defendant must pay appropriate security to secure the SEP owner if the defendant is using the SEP technology and has rejected the SEP owner’s offer and /or made its own counter offer.
On facts, Intex was held to be an unwilling licensee who had infringed the asserted patents. Court has relied upon its admissions on essentiality in its complaint to CCI and its lack of expert evidence to disprove infringement. Ericsson’s offered royalty was found to be prima facie FRAND. Accordingly, the Court directed Intex to pay the entire amount to Ericsson during the pendency of the proceedings.
