India: Diyora & Bhanderi Corporation And Ors vs. Sarine Technologies Ltd. - The Issue Over Trijunction Of Copyright, Software And Diamond

Last Updated: 3 September 2018
Article by Pratistha Sinha
Most Read Contributor in India, January 2019

This case is a copyright infringement suit pertaining on a software, filed by the Plaintiff before the Surat District Court. However the was subsequently transferred to the Commercial Court at Vadodara following a revaluation.

In the instant case, the plaintiff claims to have a copyright in a rough diamond planning software called "Advisor" which the plaintiff claims to have been infringed by a rough diamond planning software called "Work Manager", developed by the Defendants. The Plaintiff along with the said suit also preferred an application seeking an interim injunction under Order 39 Rule 1 and 2 of the CPC before the Commercial Court at Vadodara, which was decided in favour of the defendants. The plaintiffs filed an appeal against the said order before the High Court of Ahmedabad.

The High Court of Ahmedabad, vide it's orders dated 21.12.2018, remanded the matter back to the Commercial Court of Vadodara directing the court to decide the said application under Order 39 Rule 1 and 2 afresh only when a comparison of source code and object code of the softwares of both the parties has been carried out by an impartial and independent expert. In furtherance to the above order, on 12.02.2018, the Commercial Court at Vadodara directed the parties to suggest few names of expert, who may be appointed by the Court for carrying out the comparison of source Code and object code. The Court thereupon appointed a foreign expert suggested by the Plaintiff for the aforesaid purpose vide order dated 16.03.2018.

In this regard, one more issue which was required to be decided by the Commercial Court at Vadodara before the comparison could take place was with regard to the version of the plaintiff's software which should be compared with the defendants' software. The plaintiff claimed that it had copyright over all the versions of its software, namely Version 4.7, 5.3 and 6.0. However, the fact of the matter is that the plaintiff admittedly has a registered copyright only on Version 6.0 of its software and not on Version 4.7 and 5.3. Keeping this fact in mind the Commercial Court at Vadodara directed the plaintiff to submit only the certified copy of the source code and object code of its software which is registered as copyright and not the other versions, to the Local Commissioner vide its orders dated 28.02.2018 and 04.05.2018.

However, these orders was reversed by the same court vide an order dated 01.06.2018, which directed the parties to provide all materials as called for by the expert for the purpose of comparison of the source code and object code. Thus, it raised concerns for the Defendants and thereby the Defendants challenged the said order through the Special Civil Application No. 9010/2018, which was dismissed by the Hon'ble High Court of Gujarat.

The Defendants challenged the above mentioned order of the Hon'ble High Court of Gujarat and preferred a Special Leave Petition No. 7304-7305 of 2018 before the Supreme Court of India. The main issues in said SLP were:

1. Whether appointment of Mr. Bob Zeidman, a foreign expert, correct and valid?
2.Whether the comparison of source code and object code should be restricted to registered source code?

Hon'ble Supreme Court thoroughly went through the entire case and upheld the appointment of –Mr. Bob Zeidman as the expert on the ground that the defendant had already accepted and acquiesced to the said arrangement and were also in touch with the expert to ensure that the best practices has to be exercised for comparing the source codes. The Hon'ble Supreme Court found no reason to upset the said arrangement at this stage.

With regard to the second issue, the Hon'ble Supreme Court noted in unequivocal terms that the trial court was justified in restricting comparison of the source code and object code in respect of the registered version of the plaintiff vide its order dated 4.05.2018. The Hon'ble Supreme Court also pointed out that the Plaintiff never challenged the said order and having accepted that order, there was no occasion or reason for the plaintiff to seek expansion of the scope. The Supreme Court concluded by observing that the trial court was in error in expanding the scope of the order dated 04.05.2018 by its order dated 1.06.2018. Thus, the Supreme Court directed that the comparison shall be restricted to source code and object code in respect of registered version of the plaintiff's software.

Originally published in Global Patent Filing

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