In IP litigation in India, the stage of interim injunction is often a stage of intense fighting. An interim injunction is what a plaintiff wrestles for while the defendant makes every effort to counter this. What happens when there is an ex-parte ad-interim injunction?
The Division Bench in the case (TENXC Wireless Inc vs. ANDREW LLC FAO No 697/2010; Delhi High Court), while disposing an appeal contesting the suspension of the ex-parte ad-interim injunction favouring TenXc, set aside the suspension and gave directions that the single judge may decide Andrew's application under Order XXXIX Rule 4 of the Civil Procedure Code, 1908 (CPC), to vacate the ex-parte ad-interim injunction, afresh after giving an opportunity to hear the patent holder.
TenXc had preferred a suit for permanent injunction, delivery up, rendition of account of profit and damages against infringement of its registered Indian patent against Andrew LLP & others. The single judge granted an ex-parte ad-interim injunction. Andrew preferred a Letters Patent Appeal, which remanded the case back for compliance of provision under Order XXXIX of the CPC. Consequentially an application under Order XXXIX Rule 4 of the CPC was moved by Andrew, which was disposed of by vacating the ex-parte ad-interim injunction.
Rule 4 of Order XXXIX of the CPC empowers court to vacate an order of injunction if the party has made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party.
TenXc appealed against the suspension of the ex-parte ad-interim injunction order on its grievance that the single judge incorrectly viewed the filing of patent specification downloaded from the official website of Indian Patent office, instead of certified copies as a deliberate act to present filtered and selective information, suppress material particulars, misstate facts and gain undue benefit, even though the Patent certificate was issued earlier.
The division bench was of the view that Andrew's application under Order XXXIX Rule 4 of the CPC levels very serious allegations against TenXc and in absence of a written response from TenXc the Court is unable to appreciate the contentions of the parties and also the findings of the single judge and the records of the proceedings are reticent on the point that fervent requests were made by TenXc to file a reply and the single judge ignored the same. Since the pervading perception of the single judge was that TenXc had knowingly made false or misleading statements in relation to material particulars, it should have been afforded an opportunity to controvert the Andrew's statements. The court factored in these views to set aside the order of the single judge suspending the ex-parte ad-interim injunction order and also observed that the interest of justice may be undermined if an opportunity to controvert or respond to vital facts is not given.
An ex-parte injunction granted in a summary proceeding without the alleged infringer being heard, although works on the legal basis that the object of granting injunction should not be defeated by delay, but it may not hold much water in cases of patent infringement. In any claim alleging patent infringement, the requirements of urgency and legal foundation of the case has to be prima facie plausible with the condition that patent is both valid and infringed, where both validity and infringement issues require thorough examination and technical expertise.
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