COMMUNICATION COMPONENTS ANTENNA INC. v. MOBI ANTENNA TECHNOLOGIES (SHENZHEN) CO. LTD.

1. Reply affidavits have not been filed by the respondents despite opportunity having been granted.Learned counsel for therespondents prays for further time to file reply affidavits. However, keeping in view the fact that notices had been issued in the present matter on 26th August,2021, thisCourt is of the view that the respondents have had sufficient time to file reply affidavits. Accordingly, the request for additional timeto file reply affidavits is declined. 2021:DHC:3911-DB

2. It is pertinent to mention that thepresent appeal has been filed challenging the judgment dated 10th August, 2021 passed by the learned Single Judge in C.C. No.38 of 2012 filed in CS(COMM) No.977 of 2016, to the extent that it invalidatesthe Appellant’s patent, numbered Indian Patent Number IN240893 (hereinafter, “IN240893”), on the ground underSections 64(1)(h) and(k) of the Indian Patents Act, 1970 (the “Act 1970”),while adjudicating, and decreeing, the Counterclaim.

3. Learned seniorcounsel for the Appellant states that there was no pleading with respect to thegrounds of Section 64(1)(h) or Section 64(1)(k) of the Act,1970 in the context of Section 10 of the Act,1970. He states that no issueswere framed or evidence led for the same. He points out that this is especially relevant for the ground of Section 64(1)(h) since proof of the same statutorily requires evidence of “a person possessing average skill in, and average knowledge of, the art to which the invention relates”. He also states that the learned Single Judge has erroneously treated the patent in question as a process patent.

4. Per contra, learned counsel for the respondents states that the ground for revocation of patent under Sections 64 (1)(h) and64(1)(k) of the Act, 1970 in the context of Section 10 of the Act, 1970 are questions of law and not questions of fact and arise from the terms of the Patentitself. He, however,admits that no issue with regard to Sections 64 (1)(h) and 64(1)(k) of the Act, 1970 in the context of Section 10 of the Act,1970 had been framed by the learned Single Judge. He undertakes that in the event the matter is remanded to the learned Single Judge for reconsideration of revocation of patent under Sections 64 (1)(h) and 64(1)(k) of the Act, 1970 in the context of Section 10 of the Act,1970, the respondents shall neither amend their pleadings nor lead any additional evidence. He also admits that the patent which is the subject matter of the suit is both a process and product patent.

5. It is settled law that the Civil Procedure Code is an elaborate codification of theprinciples of natural justice to be applied to civil litigation. The object and purposeof pleadings andissues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expandedor grounds beingshiftedduringtrial. Its object is also to ensurethat each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. The object of issues is to identify from the pleadings the questions or points required to be decided by the Courts so as to enable parties to let in evidencethereon. (See Bachhaj Nahar vs. Nilima Mandal & Anr. (2008) 17 SCC 491).

6. In the present case, respondent no.1 had pleaded Section 64(1)(e), Section 64(1)(f)as well as Sections3(d) and 3(f) read with Sections 64(1)(d) and 64(1)(k) of the Act, 1970 as grounds for revocation.Though the impugned judgment upholds the validity of IN240893 on all grounds pleaded in the Counterclaim and issues framed, yet it invalidates the Appellant’s patent ‘IN240893’ under Sections 64(1)(h) and (k) of the Act,1970 in the context of Section 10 of the Act,1970.

7. This Court is of the opinion that learnedSingle Judge could not have entertained grounds for revocation on which issues had not been framed. Order XIV of Code of Civil Procedure (in short ‘the Code’) permitspropositionsof law and/or fact to be framed as issues. Order XIV Rule 3(c) of the Code gives power to the Court to even frame issues on thebasis of contentsof documents alone producedby either party. Thus, Courts are not confined to pleadings alone for fixing issues. Courts have complete freedom to look and draw upon other materials in Order XIV Rule 3.

8. Accordingly, even if the respondents submission is to be accepted, thelearned SingleJudgecould not have revoked appellants’ patent on thegrounds of Section 64 (1)(h) or 64(1)(k) of the Act,1970 in the context of Section 10 of the Act, 1970 without framing an issue to that effect.

9. Undoubtedly, the provisions of the Code are so elaborate that many a time,fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation should not be a ground to flout the settled fundamentalrules of civil procedure.

10. Consequently, theimpugned judgment and decree are set aside to the extent challenged in thisAppeal, and the matter is remanded to the learned SingleJudge to decide the matter afresh with regard to Sections 64(1)(h) and 64(1)(k) in context to Section 10 of the Act, 1970, which is paragraphs 28 to 34 of the impugned judgment. The learned Single Judge shall framean additional issue with regard to the revocation of the appellant’s patent on thegroundof Section 64 (1)(h) and 64(1)(k) in context to Section 10 of the Act, 1970. All pleas of the Partiesin relation to this additional issue to be framed are kept open, and the learned Single Judge shall decide the same in accordance with law. However,the respondents/defendantsare bound by the statement that they will neitheramendtheir pleadings nor lead any additional evidence. The parties are directed to appear before the learned Single Judge on 15th December, 2021. With the aforesaid directions,the present appeal stands disposed of. MANMOHAN,J NAVIN CHAWLA, J DECEMBER 1, 2021 RN