BROADCOM INC. Vs. TXASLDPC INC.

JUDGEMENT

(1.) The present petition is filed under Sec. 78 read with Order XXVI Rules 19 to 22 and Sec. 151 of the Code of Civil Procedure, 1908 (CPC) seeking the following prayer:

(2.) It is the case of the petitioners in the O.P. that the petitioners are defendants in civil proceedings with Case No.C.A.No.18-1966-SB before the Delaware Court filed by respondent No.1, for copyright and patent infringement of its Copyright Registrations and US patents, allegedly claiming priority from US provisional application bearing No.60/915,320 assigned by Dr.Gunnam. The petitioners found invalidating prior art that defeats patent claims of respondent No.1 and identified that prior art in January, 2022. Respondent No.1 provided no response for many months and resisted providing complete contentions as to the earliest alleged date of invention of respondent No.1. On 1/12/2022, Dr.Gunnam produced new source code files that purportedly show a 2005 invention date by Dr.Gunnam. On 19/12/2022, Dr.Gunnam testified under oath that he had lost these source code files but was able to recover them from 2nd respondent herein in November, 2022, after recalling that he had purportedly sent them to 2nd respondent in conjunction with a research paper some years back. In the light of the new information presented during the fact discovery in the aforesaid case before the Delaware Court on 19/12/2022, the petitioners immediately pursued discovery in India and filed an application before the Delaware Court to issue a subpoena in the name of 2nd respondent, to request 2nd respondent to testify and produce all documents, things and devices for inspection as relevant in the said civil proceeding. The Delaware Court granted the request on 11/1/2023 under the Hague Convention and accordingly sent a Letter of Request/Letters Rogatory to the Central Authority of India (Ministry of Law and Justice, Department of Legal Affairs) requesting international judicial assistance through the Hague Convention, to which India is a signatory. The authority received the Letter of Request/Letters Rogatory and forwarded the same to the District Court, Vizianagaram and thereafter it was duly served on 2nd respondent. Inspite of being aware of issuance of, and served with copy of, the Letter of Request/Letters Rogatory, 2nd respondent abstained from confirming his presence for deposition or furnishing the requisite documents and materials as set out under Head III and IV of Exhibit of the Notice of Subpoena accompanying the Letter of Request/Letters Rogatory, and failed to comply with the Letter of Request/Letters Rogatory. The said Letter of Request/Letters Rogatory sent by the Delaware Court stipulates inter alia that the evidence and deposition sought are for the purpose of discovery and evidentiary use at trial or any hearing for the said matter. The Subpoena accompanying the Letter of Request/Letters Rogatory requests 2nd respondent to testify and produce documents, information and devices for inspection. The petitioners furnished in the petition the documents and devices that are required to be produced by 2nd respondent, as per Head III and IV of Exhibit A of the notice of Subpoena. It is imperative for the civil proceedings before the Delaware Court that the above testimony and evidence of 2nd respondent be taken and produced in a timely manner so as to ensure fair and proper adjudication of the matter.

(3.) It is further submitted in the petition that the declaration made by India under Articles 21 and 23 of the Hague Convention stipulates that in case of a pre-trial discovery of documents that are likely to be in the possession/custody/power of a person, the Republic of India cannot refuse execution of a Letter of Request requiring production of pre-trial discovery of documents which are specified in the concerned Letter of Request. The petitioners also placed reliance on Article 27 of the Hague Convention and Sec. 78 CPC read with Order XXVI Rules 19 to 22 CPC.