TENXC WIRELESS INC Vs. ANDREW LLC

JUDGEMENT

(1.) The Appellants assail the order dated 30th November, 2010 passed by the learned Single Judge whereby the ex-parte injunction granted by the learned Single Judge vide order dated 4th October, 2010 was suspended/vacated and the case was fixed for completion of the pleadings of the parties with direction to the Respondents to file their written statements within 30 days from the date of the said order.

(2.) A suit for permanent injunction restraining infringement of registered Indian Patent Number 240893 for an invention entitled "Asymmetrical Beams for Spectrum Efficiency", delivery up, rendition of account of profits and damages was filed against Respondent No. 1. The matter came up for hearing on the application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure (Code). On 4th October, 2010, the learned Single Judge ordered impleadment of Defendants No. 2 and 3 (Respondents No. 2 & 3 herein) as it was represented on behalf of the Appellants that Respondent No. 1 was in the process of selling its impugned product to Reliance Communication and Tata Teleservices Respondent Nos. 2 & 3 respectively. On information of an ex-parte injunction order passed against it, Respondent No. 1 preferred an LPA which came to be disposed of by this Court on 15.11.2010. The case was remanded for compliance of provisions of Order XXXIX as laid down in the Code as well as clarified in A. Venkatasubbiah Naidu v. S. Chellappan, 2000 7 SCC 695.

(3.) An application under Order XXXIX Rule 4 of the Code was moved by the Respondent No. 1 which came to be disposed of by the impugned order. The grievance of the Appellants is that the order of injunction was suspended/vacated by the learned Single Judge mainly on the ground that as per the case of the Appellants the Patent Certificate by Patent Office had been given to the Appellants on 9.06.2010 yet the Appellants had deliberately not produced the specification in respect of which the product of the Appellants had been patented in as much as the Appellants instead of filing the documents annexed to the Patent Certificate dated 9.06.2010 had filed the documents in respect of the Patent which had been downloaded from the site of the Patent Office. It had also been alleged in the application under Order XXXIX Rule 4 of the Code that the Appellants had dealings with Respondent No. 1 as he had entered into Agreement for using Respondent No. l's technology called "Remote Electrical Tilt" and thus the Appellants' Company was aware that the Respondent No. 1 Company and its subsidiary had been using the impugned product for the last more than two years before filing of the suit.