Indian customs authorities recently held against Ramkumar in a legal saga involving a patented dual SIM technology. By way of background, Ramkumar asserted patent rights over dual SIM enabled cell phones against several importers including Hansum India, Samsung and Micromax. While many of the smaller importers caved in and paid Ramkumar to have their consignments released by customs authorities, bigger players such as Samsung refused to pay and challenged his claims before customs authorities.
As we'd noted several times on this blog, Ramkumar's patent is limited to dual SIM phones that carry multiple headphone jacks (or bluetooth facilities) in order to facilitate simultaneous calls through different SIM cards within the same phone. By claiming rights over all dual SIM phones, Ramkumar's actions smack of fraud and misrepresentation. The law is now slowly catching up with him and calling him on his bluff.
If Roche (in the Tarceva litigation) was hit with a cost of Rs 5 lakhs for alleged misrepresentations and inconsistent statements before the Indian patent office and the Delhi High Court, one wonders what kind of a "costs" figure is likely to befall poor Ramkumar at the end of this interesting legal saga that has already been tainted with one murder.
Mumbai Customs Order
After hearing the parties (Ramkumar and Samsung), the Mumbai Commissioner of Customs (imports), Mathew John, went to the extent of stating thus:
"From the foregoing facts, it is clear that the claim made by Mr Ramkumar is vexatious because the impugned goods are covered by Prior Art declared by him and are not infringing the patent granted to him. Demurrage and other warehousing charges arising due to suspension of clearance are liquidated amounts and are to be borne by the Patent Holder."
In particular, the Commissioner relied on the following points pleaded by Samsung:
i) Unity of Invention under Section 10(5) of the Indian Patents Act which mandates that the claims shall "relate to a single invention or to a group of inventions linked so as to form a single inventive concept.."
ii) The All Elements Rule: A claim will not cover any device unless that device contains all elements of the claim.
iii) Dependency of Claims: Claim 1 is the omnibus claim and all other claims depend on this first claim. Therefore if claim 1 is not infringed, none of the other claims are infringed.
iv) File Wrapper Estoppel: Ramkumar's first application filed in 2002 claimed dual SIM technology broadly. Owing to objections from the patent office, it was narrowed down to include only those dual SIM phones that also permitted simultaneous communication via multiple headsets (or bluetooth facility). Ramkumar now cannot claim what he had expressly given up to address concerns of novelty. (nb: The Commissioner relied on Chisum's patent treatise while ruling on this aspect).
In pertinent part, the Commissioner notes:
"Though the advocate of the patent holder was present while these arguments were raised, he did not counter these arguments apart from just stating that each of the 20 claims made in his application is independent and infringement of any one would have the effect of infringing his rights under the Patent."
"..the idea of a mobile phone with dual SIM cards is not an original invention of the Patent Holder. He has just wrapped it up with some additional features and claiming that any mobile phone with dual SIM cards violates his rights."
Chennai Customs Order in Favour of Hansum
Samsung obtained a favourable order from the Chennai customs authorities as well. And so did Hansum India. Both the Mumbai and Chennai orders are quite detailed and well reasoned and once our SpicyIP website is up again (sadly some miscreants have hacked it), I will put this up for public consumption.
In an order favouring Hansum India, the Chennai Customs Commissioner held thus:
"From a plain reading of the above claim 1, it is seen that a provision for a plurality of SIM cards, a plurality of SIM sockets, a plurality of headphone/earphone jacks and a plurality of bluetooth devices should be present in the mobile phones. The reason for such a provision is also enlarged by the patentee that it is for the purpose of communicating simultaneously with the respective SIM cards. Therefore it boils down to the point that the sum and essence of the patent is for simultaneous communication by using the plurality of SIM cards".
The only slight mistake in the claim construction above is that it ought to have been "... a plurality of headphone/earphone jacks and/or a plurality of bluetooth devices...".
This however does not impact the merits of this case, as Hansum does not import phones that deploy either a "plurality of headphone/earphone" jacks OR "a plurality of bluetooth devices".
In an earlier post, I'd noted that the lawyer representing Ramkumar threatened defamatory action against me and referred to my analysis of the patent claim as "juvenile". It's interesting that two detailed orders from customs authorities interpret the claim in the same "juvenile" manner. It would appear that "juvenile" is a favourite term of Ramkumar's lawyers and they've used it in their submissions before the customs commissioner as well. I quote:
"Therefore the burden of proof lies with Samsung to establish that their goods do not infringe my patent right and they cannot escape their liability by putting forth juvenile contentions that my patent is part of prior art."
Incidentally, Ramkumar's lawyer reacted to my earlier post (documenting his threat to take defamatory action against me), insinuating that I was a "failed lawyer turned academic". Once again, let me exhort him to desist from resorting to ad hominem attacks. Rather, let us engage with the substantive merits of this dispute.
The tide is slowly turning against Ramkumar and his misrepresentations of the scope of his claims are now returning to haunt him. At the end of all these legal proceedings, it is likely that the importers will prevail over Ramkumar. The question then is: does our law provide for any penalties for such a fraudulent attempt at misrepresenting the scope of one's claims? More importantly, what of all the small importers that paid huge sums to Ramkumar to have their consignments released?
The bigger players like Samsung will walk away after winning this legal battle. But what of the smaller players: will they be able to recover moneys paid to a patentee who blatantly misrepresented the scope of his claims? Does our law provide for the return of such moneys under theories of unjust enrichment or restitution?