Lava International Limited v. Telefonaktiebolaget Lm Ericsson ( Publ)

Order dasti.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) JULY 14, 2016

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 14.07.2016 + FAO(OS) (COMM) 45/2016, C.M. APPL.23769/2016 LAVA INTERNATIONAL LIMITED …………Appellant Through: Sh. Parag Tripathi, Sr. Advocate with Sh. Ashok. K. Aggarwal, Sh. Jayant Mehta, Sh. Swapnil Gupta, Sh. Shwetank Tripathi and Ms. Rani Singh, Advocates. Versus TELEFONAKTIEBOLAGET LM ERICSSON (PUBL) ……..Respondent Through: Sh. Gopal Subramaniam, Sr. Advocate with Ms. Prathiba. M. Singh, Sr. Advocate with Sh. Chander. M. Lall, Ms. Saya Chaudhary Kapur, Sh. Ashutosh Kumar, Sh. Raghav Chadha, Sh. Ruhin Koolwal, Ms. Sutapa Jana, Ms. Meetali Aggarwal, Sh. Devanshu Khanna, Sh. Aditya Jayaraj and Sh. Nikhil Chawla, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MR. JUSTICE S. RAVINDRA BHAT % 1. This defendant's appeal questions an interlocutory order of the learned Single Judge dated 10.06.2016 in a patent infringement suit. The Page 2 appellant (hereafter referred to as "the defendant") complains that the impugned order affects its right to defend the suit for infringement of patent instituted by the plaintiff. 2. The facts briefly are that the plaintiff claimed that the appellant/defendant infringed its patents and, in its suit, sought injunctive relief as well as damages. It also claimed a decree for a declaration that the rights offered by it in respect of its portfolio of its standard essential patents are FRAND (Fair, Reasonable and Non-discriminatory in character).The orders of the learned Single Judge were the subject of several previous interlocutory appeals to the Division Bench, on various occasions. The matter even reached the Supreme Court on at least two occasions. On 16.12.2015, the Supreme Court, by its order in SLP No.34886-87/2015 required this Court to decide the suit as expeditiously as possible and preferably within six months from the date the defendants filed their written statement. After that proceeding, and having regard to the pleadings of the parties, the issues were framed in the suit on 02.02.2016. On 22.02.2016, the learned Single Judge fixed the schedule of trial, in the following terms: "(i) 4 weeks for filing evidence affidavit in affirmative by both the parties, i.e. by 21st March, 2016; (ii) Thereafter, cross-examination (8 hours per witness), i.e. from 28thMarch, 2016 to 15th April, 2016; (iii) Thereafter, 2 weeks for filing rebuttal evidence, i.e. till 5thMay, 2016. (iv) Thereafter, 2 weeks for cross-examination on rebuttal evidence, i.e. from 9th May, 2016 to 24th May, 2016. Page 3 (v) Commencement of final arguments from 30th May, 2016." Learned counsel for the parties state that once the affidavits are filed, both the parties will intimate each other as to which witness they would cross-examine on the respective dates. They also agree that the parties will try to abide by the schedule fixed by the Court." 3. On 05.05.2016, the Court noticed that the plaintiff's evidence had been concluded and that the defendant had to produce evidence in the main suit and the counter claim in other proceedings. The defendant had apparently filed affidavit depositions of two witnesses – Madhusudan (DW-1) and Prof. Kamakoti (DW-2). The Court noted that the cross-examination of DW-1 would be conducted between 06-09.05.2016. On 10.05.2016, the Court directed that DW-1 be made available on 13.05.2016 for further cross- examination. On 13.05.2016, the plaintiff stated that the cross-examination of DW-1 would be concluded that day and that the cross-examination of a defence witness – Sunil Bhalla would be recorded on 14.05.2016. On that day, i.e. on 14.05.2016, the cross-examination of DW-1 could not be concluded. The statement and cross-examination of Shri Bhalla, DW-3 was partly recorded. On 16.05.2016, the learned Single Judge who was closely monitoring the trial noted the developments, which had occurred in the proceedings and further that on 03.05.2016, the defendant had submitted an additional list of witn