LAVA INTERNATIONAL LIMITED Vs. TELEFONAKTIEBOLAGET LM ERICSSON (PUBL)

JUDGEMENT

(1.) This defendant's appeal questions an interlocutory order of the learned Single Judge dated 10.06.2016 in a patent infringement suit. The 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:

(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 witnesses containing seven names. At the same time, it was urged on behalf of the defendants that the depositions of only seven witnesses in all would be presented. The Court was informed ­ on behalf of the defendant that Prof. Kamakoti, one of its witnesses was not available in May 2016. The final order on the request for deferment of his cross -examination was made ­ rather, the case was directed to be taken up on 25.05.2016. The defendant again requested that its witness would not be present on the date scheduled, i.e. 28/29.05.2016. However, the Court again deferred orders to 30.05.2016 with respect to Prof. Kamakoti and did not accede to the request for postponement. The Court also observed that: