COMMUNICATION COMPONENTS ANTENNA INC. (EARLIER KNOWN AS TEN XC WIRELESS INC) Vs. MOBI ANTENNA TECHNOLOGIES (SHENZHEN) CO. LTD.

JUDGEMENT

(1.) This suit was originally instituted by TenXc Wireless Inc., a Canadian Corporation and TenXC Wireless India Private Limited against Mobi Antenna Technologies (Shenzhen) Co. Ltd., a Chinese Corporation, for permanent injunction, to restrain infringement of registered Indian Patent No.240893 for an invention entitled "Asymmetrical Beams for Spectrum Efficiency ", and for ancillary reliefs.

(2.) The suit, then numbered as CS(OS) No.1989/2010, came up first before this Court on 27th September, 2010, when on request of the plaintiffs, the same was adjourned to 28th September, 2010 and thereafter again to 4th October, 2010. On 4th October, 2010, on the contention of the counsel for the plaintiffs that the defendant no.1 Mobi Antenna Technologies (Shenzhen) Co. Ltd. was in the process of selling the impugned products to Reliance Communications and to Tata Teleservices Limited, Reliance Communications and Tata Teleservices Limited were permitted to be impleaded as defendants no.2&3 and while issuing summons of the suit/notice of the application for interim relief to all the defendants, the defendants no.2&3 i.e. Reliance Communications and Tata Teleservices Limited were directed to maintain status quo with regard to the installation of "Bi-Sector Array Antenna " supplied by the defendant no.1 Mobi Antenna Technologies (Shenzhen) Co. Ltd. The defendant no.1 Mobi Antenna Technologies (Shenzhen) Co. Ltd. applied under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 (CPC), but which application was dismissed vide order dated 12th November, 2010, reasoning that the interim order granted on 4th October, 2010 being against the defendants no.2&3 only and not against defendant no.1, the defendant no.1 had no reason to apply under Order XXXIX Rule 4 of the CPC. The defendant no.1 filed another application under Order XXXIX Rule 4 of the CPC and which came up before the Court on 6th December, 2010. The order dated 6th December, 2010 records that in connected CS(OS) No.1993/2010 (which on coming into force of the Commercial Courts Act, 2015 was renumbered as CS(COMM) No.1072/2016) also filed by the plaintiffs for the same reliefs against some other party, the ex parte stay earlier granted had been vacated. The defendant no.1 preferred FAO(OS) No.680-81/2010 against the orders dated 4th October, 2010 of grant of ex parte ad interim injunction against the defendants no.2&3 and dated 12th November, 2010 of dismissal of application under Order XXXIX Rule 4 of the CPC and which appeal also, on 1st December, 2010 was disposed of in view of disposal of FAO(OS) No.660/2010 arising from connected CS(OS) No.1993/2010 and recording that the defendant no.1 will approach the Suit Court for vacation of the interim order. The applications of the plaintiffs in this suit as well as in CS(OS) No.1993/2010 for interim relief were heard together and dismissed vide detailed judgment dated 4th November, 2012, reasoning that the defendants had raised a substantial, tenable and credible challenge to the patent of the plaintiffs and the plaintiffs were thus not entitled to interim injunction. Again, FAO(OS) no.10/2012 was preferred by the plaintiffs impugning the judgment dated 4th November, 2012 of dismissal of applications for interim relief. The said appeal, along with FAO(OS) No.614/2012 arising from CS(OS) No.1993/2010 were disposed of vide common order/judgment dated 23rd February, 2012 expediting the trial in the suits and allowing the amendments sought by the plaintiffs. Vide order dated 28th November, 2013, the two plaintiffs TenXc Wireless Inc. and TenXC Wireless India Private Limited were substituted by Communication Components Antenna Inc., also a Canadian Corporation. Plaint was again amended in July, 2014.

(3.) The case of the plaintiff, as per last amended plaint dated 25th September, 2015 verified on 26th September, 2015 is, that (i) the erstwhile plaintiff no.1 TenXc Wireless Inc. was an innovation-driven, product-based small business enterprises, which foresaw the need for new, compact, costeffective and innovative technologies which could address various challenges facing the wireless communication sector, such as acute paucity of spectrum and the need to ensure greater penetration of advanced state-ofthe-art communication technologies at affordable costs; (ii) the erstwhile plaintiff no.1 had focussed its efforts on paucity of spectrum; (iii) the patented invention was designed by the erstwhile plaintiff no.1; (iv) Indian Patent IN240893 was granted on 9th June, 2010, pursuant to an Indian application filed on 5th October, 2008; (v) the Patent Co-operation Treaty (PCT) International Application was filed by the erstwhile plaintiff no.1 on 19th March, 2007 on the basis of a Canadian application filed on 17th March, 2006 at the Canadian Patent Office and on which Canadian Patent No.2,645,720 was granted; (vi) therefore the date of priority of the Indian patent is the date of filing of the Canadian application i.e. 17th March, 2006 and the term of 20 years of Indian patent is calculated from the PCT international filing date i.e. 19th March, 2007; (vii) the invention subject matter of IN240893 is a technology which broadly relates to wireless communication systems, particularly to improve use of available spectrum, using an antenna which enhances subscriber capacity of existing cell sites; (viii) frequency spectrum for wireless communications is a scarce resource, which must be made use of efficiently and optimally; (ix) efforts to accommodate greater number of users of wireless communication systems within the finite amount of spectrum had resulted in technologies such as Frequency Division Multiple Access (FDMA), Time Division Multiple Access (TDMA) and Code Division Multiple Access (CDMA) - each of which technologies increased subscriber capacity by optimizing frequency, time or code; (x) subsequently, cellular concept was introduced to overcome range limitations associated with FDMA, TDMA and CDMA technologies; in the cellular concept, a given area is split into several cells, with each of these cells being allocated a specified amount of resources to cater to a specified number of wireless users/subscribers; (xi) initially, in the cellular model, a centrally located omni-directional antenna was used - an omni-directional antenna emits signals uniformly, in a single plane, in all directions; (xii) however the intensity of the signal was not satisfactory in the outer fringes of the coverage area and which resulted in dropping of calls and the capacity of the systems being limited; (xiii) to overcome the same, the concept of sectorization was introduced; in sectorization, instead of a single omni-directional antenna, a number of directional sector antenna are used; these directional sector antennae divided the cell into a number of sectors, thereby restricting the radio coverage to a limited segment of the previously circular omni area; (xiv) as the demand of the network grew, adding more sectors was seen as a simple way of increasing capacity without the need for building new sites; (xv) however as more sectors were added, the symmetrical nature of the beams from the sector antenna proved to be a limitation; (xvi) invention protected by the patent of the erstwhile plaintiff no.1 did away with a significant number of limitations and disadvantages associated with all the above technologies; (xvii) the invention protected by the patent of the erstwhile plaintiff no.1 was a flagship product, marketed under the name "Bi-Sector Array Antenna " and its technology was referred to as a "split-sector antenna "; (xviii) the distinguishing feature of the Bi-Sector Array Antenna was, that it emitted an optimized asymmetric beam pattern, as opposed to the conventional symmetric beam pattern of the antennae in the prior art; (xix) the asymmetric beam pattern of the invention radically altered the conventional model of symmetric sectorization; (xx) the inventive step of the erstwhile plaintiff no.1, was a technology by which a single sector which was earlier covered by a single directional antenna emitting a single symmetric beam, was split into a number of equivalent sub-sectors by an equal number of beams emitted by a single split-sector antenna with at least one of its sectors so created being an asymmetric sector created by at least one asymmetric beam emitted by the split-sector antenna; (xxi) though the beams in prior art were referred to as symmetric beams but had a negligible degree of asymmetry owing to manufacturing tolerances; this asymmetry was viewed as a defect in the prior art and there were no means of using the symmetric beam in the prior art in a controlled fashion, to cater to a localized demand; (xxii) the technology of the erstwhile plaintiff no.1 deliberately introduced a significant degree of asymmetry; (xxiii) the capability of the invention of the plaintiff no.1 to control and modulate the degree of asymmetry sets it apart from the prior art; (xxiv) the advantage of the technology invented by the erstwhile plaintiff no.1 was, that it significantly reduced gaps/voids in coverage areas and minimized the interfering overlap between the beams; (xxv) the patented invention of the erstwhile plaintiff no.1 did not restrict itself to a range of asymmetry; it claimed the technology of emitting at least one asymmetric beam to create at least one asymmetric sector; (xxvi) therefore, regardless of the degree of asymmetry in the beams, all split-sector antennae which emitted at least one asymmetric beam, fell squarely within the scope of the claims of the erstwhile plaintiff no.1; (xxvii) the most significant contribution of the invention of the erstwhile plaintiff no.1 over and above prior art was, that it enhanced subscriber capacity within a sector/subscriber coverage area, not by increasing the number of sectors and allocating greater resources to each other, but by replacing a pair of existing directional antennae which emitted a symmetric beam each with a single split-sector antenna that divided the same sector into at least one asymmetric sector, using at least one asymmetric beam; (xxviii) in India, where availability of space for creation of new sectors is a constraint, invention of the erstwhile plaintiff no.1 could be used to address issues of subscriber density with minimal changes to the existing set-up; (xxix) the defendant no.1 Mobi Antenna Technologies (Shenzhen) Co. Ltd. was importing and offering for sale Bi-Sector Array Antennae for use in New Delhi and whose features and functions were identical to the patented split-sector/Bi-Sector Array Antenna of the erstwhile plaintiff no.1; (xxx) on 20th August, 2010, the defendant no.2 Reliance Communications informed the erstwhile plaintiffs that an approved purchase order had been placed by it with the defendant no.1 for supply of 300 Bi-Sector Array Antenna in an around Delhi; the defendant no.2 also informed the erstwhile plaintiffs that a substantial part of the commercial and technical discussions surrounding the technical and commercial feasibility of the defendant no.1 's offer for supply of Bi-Sector Array Antenna, incorporated the patented invention of the plaintiffs; (xxxi) on 20th August, 2010, the erstwhile plaintiffs were informed by the defendant no.3 Tata Teleservices that they had imported models no. MB1800-PSA4-18DE10 and MB1800-PSA4-18DT4 for deployment and evaluation as potential substitutes for the Bi-Sector Array Antenna of the plaintiffs; (xxxii) the inventive step of the invention of the erstwhile plaintiff no.1 was a technology by which a single sector, which was earlier covered by a single directional antenna emitting a single symmetric beam was now split into a number of equivalent sub-sectors by an equal number of beams being emitted by a single split-sector antenna, with at least one of the sub-sectors so created being an asymmetric sector created by at least one asymmetric beam emitted by the split-sector antenna; (xxxiii) the infringing products of the defendant no.1 employ the very same inventive step and are therefore identical to the invention claimed by the patent of the plaintiffs; this is clearly and incontrovertibly established by the beam pattern of the defendant no.1 's product as depicted in the sales brochure of the defendant no.1; (xxxiv) further, as claimed in Claims No.12 and 13 of the subject patent, the sub-sector area covered by one beam is a mirror image of the sub-sector area covered by the other beam; (xxxv) from the asymmetric beam patterns of the antenna of the erstwhile plaintiffs and the antenna of the defendant no.1, it is evident that the defendant no.1 's antenna clearly infringes the erstwhile plaintiff 's patent, in particular Claims No.1, 10, 12 and 13; (xxxvi) the antennas of the defendant no.1 also emit at least one asymmetric beam and consequently infringe the patent of the erstwhile plaintiff; (xxxvii) the Indian Institute of Technology (IIT), Delhi also, after studying the products of the erstwhile plaintiffs and of the defendant no.1, found the products of the defendant no.1 to be infringing the patent of the erstwhile plaintiff; and, (xxxviii) the erstwhile plaintiff no.1 TenXc Wireless Inc., in the second half of the year 2011 was unable to pay its debts and sale of its assets was initiated under Section 63 of the Personal Property Security Act of the Province of Ontario, Canada and Communication Components Antenna Inc. being the highest bidder, acquired inter alia the patents held by the erstwhile plaintiff no.1 TenXc Wireless Inc.