TMI Blog2021 (5) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of an adjudication conflict, were both proceedings to be allowed to continue side by side and (v) grant of anti-suit injunction would not prejudice the plaintiffs in the present proceedings, except to the extent of delay in obtaining relief. Even as regards the main complaint and the documents filed by the defendants, in that regard, the Wuhan Court records, candidly, that service of the complainant and the documents were still in process, but that it was nevertheless proceeding to issue the anti-suit injunction directly , in a sense of behavior preservation . Whether the Wuhan Court was justified in doing so, or not, is not for me to comment on, in the present proceedings. Suffice it to state that, in the circumstances, the contention that the order of the Wuhan Court was passed after due notice to the plaintiffs is obviously unacceptable. The record reveals, rather, that it was only during the pendency of these proceedings in this Court that the plaintiffs were ever made aware of the fact that the defendants had filed an anti-suit injunction application in the Wuhan Court. The failure, of the plaintiffs, to enter appearance consequent to notice being issued by the Wuh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, therefore, racing towards the same goal. Thus, to conclude, it is totally impermissible for a Court in one sovereign jurisdiction to injunct the party before it from pursuing its cause against infringement of its intellectual property before another sovereign jurisdiction, where such latter jurisdiction is the only forum competent to adjudicate the claim of infringement, save and except where continuation of the infringement proceedings are vexatious or oppressive to the proceedings pending before the former, injuncting, court. The mere fact that one or other aspect of the controversy may overlap cannot be a ground to grant such injunction. Nor can the consideration of the two courts arriving at differing decisions on that part of the issue which may overlap be regarded as sufficient to grant such injunction, which would result in denying the plaintiff seeking injunction against infringement the right to agitate such claim before the only forum competent to adjudicate thereon. Such injunction would be ex facie destructive of the principle of comity of courts. This application is allowed in the following terms and to the following extent: (i) The ad interim injunction g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, filed by them, before the Wuhan Court in the aforesaid complaint, and, (iv) imposition, on the defendants, of costs equivalent to the costs likely to be imposed on the plaintiffs by the Wuhan Court. 2. Mr. Gaurab Banerjee, learned Senior Counsel for the plaintiffs/applicants, submits that his clients were not pressing prayer (ii) in the application, and had no objection to the defendants' pursuing their suit/complaint before the Wuhan Court. He submits that his clients are, however, pressing prayers (i), (iii) and (iv). 3. By order dated 9th October, 2020, I had injuncted the defendants, ad interim, from enforcing against the plaintiffs, the directions contained in the order dated 23rd September, 2020, of the Wuhan Court. It was made clear, however, that the observations and findings contained in the said order were only ad interim in nature and were not binding when the application would be taken up for final hearing. The application has, thereafter, been heard finally. 4. Detailed arguments were advanced, on behalf of the plaintiffs/applicants, by Mr. Gaurab Banerjee, learned Senior Counsel, instructed by Mr. Pravin Anand, learned counsel and, on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an SEP royalty rate-setting suit ( the Wuhan Suit referred to, in the proceedings before the Wuhan Court, as the complaint ), before the Wuhan Court on 9th June, 2020. The defendants sought, in the said complaint, fixing of a global FRAND royalty rate, on the basis of which they could obtain licence from the plaintiffs, to operate and use the technology covered by the entire patent portfolio of the plaintiffs, which would include the suit patents. 9. Summons, in the present suit, were issued by this Court on 4th August, 2020. On the very same day, the defendants filed an anti-suit injunction application before the Wuhan Court for a restraint, against the plaintiffs, from prosecuting the present suit before this Court. 10. By order dated 23rd September, 2020, the enforcement whereof the present application seeks to injunct, the Wuhan Court issued the following directions: 1. Upon service of this ruling, the Respondents InterDigital, Inc. and InterDigital Holdings, Inc. as well as the affiliates thereof shall immediately withdraw or suspend their application for any temporary injunction before the High Court of Delhi at New Delhi of India against the Applicants Xi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Homecare commercial Co., Ltd., and Beijing Xiaomi Mobile Software Co., Ltd. for the behavior preservation application; 7. Other claims in the behavior preservation application of the Applicant's Xiaomi Communications Co., Ltd., Xiaomi Home Commercial Co., Ltd., and Beijing Xiaomi Mobile Software Co., Ltd. shall be rejected. In the event of the Respondents InterDigital, Inc. and InterDigital Holdings, Inc. violating this ruling a fine of RMB 1 million yuan per day shall be imposed, calculated cumulatively from the date of the violation. 11. By the present application, the plaintiffs seek an injunction, against the defendants, from enforcing, against them, the aforesaid directions issued by the Wuhan Court. C. Rival Contentions 12. Mr. Gaurab Banerji, learned Senior Counsel for the plaintiffs, advanced, essentially, the following contentions: (i) The impugned order completely divested the plaintiffs of their right to prosecute their suit. The contention, of the defendants, that the order merely delayed recovery of royalty from the defendants, was not correct. The suit of the plaintiffs was not for recovery of royalty against grant of licence, but was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy of the domestic court, no principle of comity of courts could inhibit the domestic court from protecting itself against the assault on its public policy. For this purpose, he relied on the judgment of the Supreme Court in Satya v. Teja Singh (1975) 1 SCC 120. He also submitted that comity was a two-way street. For this purpose, reliance was placed on IPCom GmbH Co. KG v. Lenovo Technology (United Kingdom) Ltd. [2019] EWHC 3030 (Pat), Huawei v. Conversant [2019] EWCA Civ. 38 and, Owens-Illinois v. Webb 809 S.W. 2d. 899 (Tex. App 1991), decided by the Court of Appeals of Texas on 9th July, 1991 . (iv) In this context, the aspects which are relevant for consideration, were (a) whether the defendants were required to be restrained, during the pendency of the present suit, from pursuing or enforcing the anti-suit injunction order dated 23rd September, 2020 of the Wuhan Court, (b) whether the defendants were required to be directed to withdraw their anti-suit injunction application, filed before the Wuhan Court, insofar as it impacted the proceedings in this court and IA 6440/2020, filed by the plaintiff for interlocutory injunction under Order XXXIX of the CPC, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, without any licence being taken by the defendants and without the plaintiffs being allowed to oppose such infringement before this Court, being the only court competent to adjudicate the lis. The considerations of balance of convenience and irreparable loss, too, therefore, operated to justify grant of injunction, as sought in this application. (vii) On the aspect of overlap of the proceedings pending before this Court in the present suit and in IA 6440/2020 with the complaint filed by the defendants in the Wuhan Court, it was submitted that mere overlap, even if it existed, did not justify issuance of an anti-suit injunction as had been done by the Wuhan Court. Moreover, submits Mr. Banerjee, the overlap, if any, was only partial and incidental. It was pointed out that the scope of FRAND inquiry by this Court in IA 6440/2020, or even in the main suit, was fundamentally different from the scope of FRAND inquiry which would be carried out by the Wuhan Court while examining the complaint filed by the defendants. This Court would be concerned with the FRAND rate of royalty for grant of licence by the plaintiffs to the defendants for the right to exploit the suit patents as, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (xi) Apart from the above submissions, which were intended to support prayers (i) and (iii) in this application, Mr. Banerjee also seriously pressed prayer (iv), which sought imposition of costs, on the defendants, equivalent to the costs/penalty payable by the plaintiffs in accordance with the order dated 23rd September, 2020, of the Wuhan Court. Emphasis was laid, for this purpose, on the defendants' own submission that they were powerless to restrain the Wuhan Court from enforcing the direction for payment of fine, as contained in the order dated 23rd September, 2020, as the anti-suit injunction application stood disposed of. Once the Wuhan Court had issued directions to the plaintiffs, and had made the directions liable to compliance on payment of fine, the defendants sought to submit that the decision on whether to secure enforcement of its order, or not, by recovery of the said costs from the plaintiffs, vested with the Wuhan Court, and that the defendants had no part to play in this regard. Mr. Banerjee submitted that, in that view of the matter, given the fact that the order dated 23rd September, 2020, of the Wuhan Court, had come to be passed owing to sharp practices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the FRAND rate at which the license, for exploitation of their SEPs, was to be granted by the plaintiffs, was a necessary precursor to any finding of infringement by the defendants, which would follow only if the defendants were unwilling to take a licence from the plaintiffs at the FRAND rate so determined by the Court. As such, he submits, the plaintiffs were misleading the court in contending that their claim before the Court was only for injuncting infringement of the suit patents. Mr. Kaul submits that FRAND rate determination was integral to the consideration of the prayer for interlocutory injunction made by the plaintiffs in IA 6440/2020. As such, the issue before this Court, and the Wuhan Court, he submits, were not only overlapping, but were substantially identical. (iii) If the two Courts were to be permitted to adjudicate their proceedings simultaneously, Mr. Kaul submits that there was a possibility of two global FRAND rates being fixed which would result in chaos and would give rise to various vexed issues. In such circumstances, he submits that there were authorities to the effect that, in order to avoid an unseemly race to have the FRAND rate fixed, one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Mr. Kaul, no case for grant of injunction, as sought in this application, exists. D. Judgments cited by learned Counsel 14. Admittedly, many of the issues which arise in the present case are res integra, at least insofar as the development of the law in this country is concerned. Extensive reliance has been placed, by learned Senior Counsel on both sides, on decisions rendered in foreign jurisdictions. These must, in the very nature of things, guide appreciation of the issues involved in the present case; accordingly, I am of the opinion that, at the outset, it would be appropriate to examine what has been held in these decisions. Before proceeding to foreign judgments, however, it would be appropriate, at the first instance, to study the decisions of the Supreme Court, this Court and the High Court of Calcutta, on which learned Counsel placed reliance. Admittedly, the Supreme Court has pronounced, on the aspect of anti-suit injunctions, restraining parties from proceeding with litigations in foreign jurisdictions, primarily in three decisions, viz. O.N.G.C. v. Western Co. of North America (1987) 1 SCC 496, Modi Entertainment Network (2003) 4 SCC 341 and Dinesh Singh T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the arbitration proceedings will be governed by the Indian Arbitration Act of 1940. Not only the matter will be decided by a court other than the court agreed upon between the parties but it will be decided by a court under a law other than the law agreed upon. Should or should not such an unaesthetic (sic) situation be foreclosed? 14. The last submission is also quite impressive. If Western Company is right in the posture assumed by it in this Court at the time of the hearing that the American Court has no jurisdiction to confirm the award in view of the New York Convention is correct, the resultant position would be this: The award rendered by the Umpire, the validity of which is not tested either by an American Court or an Indian Court will have been enforced by an American Court. It will be an extremely uphill task to persuade the court to hold that a foreign award can be enforced on the mere making of it without it being open to challenge in either the country of its origin or the country where it was sought to be enforced. And that its validity may perhaps be tested for academic purposes in the country of origin after the award is enforced and for seeking restitution l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d grant of anti-suit injunction, qua the proceedings in the US Court were, therefore, (i) the Indian Court being the proper court, for seeking enforcement of, or for challenging, the award and (ii) the difficulties which ONGC would face if the US Court were, without jurisdiction, to proceed to enforce the award. Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. (2003) 4 SCC 341 20. The dispute, in this case, emanated out of an announcement, by the International Cricket Council (ICC), for organising a cricket tournament in Kenya, for which W.S.G. Cricket Pte. Ltd. ( WSG , hereinafter) was granted exclusive license to grant commercial rights. Exclusive license was, thus, granted, by WSG, to the second appellant before the Supreme Court (whose identity is not forthcoming from the judgment) on 21st September, 2000. Said second appellant assigned its rights to the first appellant, Modi Entertainment Network ( Modi , hereinafter). Modi was required, under the agreement, to pay a minimum guaranteed amount of US $ 35 lakhs. 21. Cross suits resulted. On 9th May, 2001, Modi sued WSG in the High Court of Bombay, claiming damages for loss of advertising revenue due to illegal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscretion to grant an anti-suit injunction the court must be satisfied of the following aspects: (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity-respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained-must be borne in mind. (2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens. (3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the agreement between Modi and WSG, conferring jurisdiction on English courts to adjudicate on disputes. That aspect is not of particular relevance to the present case, as there is no agreement between the plaintiffs and the defendants, on the basis of which the issue of jurisdiction can be determined. Dinesh Singh Thakur v. Sonal Thakur (2018) 17 SCC 12 26. This case involved a matrimonial dispute. The appellant before the Supreme Court was the husband, and the respondent, the wife. Consequent to marital relations souring, the husband filed a petition for divorce, against the wife, before the Family Court, Gurugram. Subsequently, the wife filed a petition for divorce, against the husband, before the Florida District Court. The husband, thereupon, filed a second suit before the Gurugram Court, seeking an anti-suit injunction, restraining the wife from prosecuting her divorce petition before the Florida Court. Ex parte ad interim injunction, in the said terms, was initially granted by the learned District Judge, Gurugram who, subsequently, vacated the injunction. The challenge, to the said vacation order, by the husband, was dismissed by the High Court, resulting in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g its original civil jurisdiction. That is not to suggest that a Civil Judge (Junior Division) may lack the authority, it is only that such an injunction may rarely be sought at that level. 56. The very purpose of law is to right a perceived wrong. In course of a court righting such wrong, at times, something more than adjudicating the immediate lis is also called for. It would be futile for a court to proceed steadfastly towards a decree in a civil suit if, in the mean time, the subject-matter of the decree is wasted or destroyed. In doing justice in accordance with law, the court will also try and preserve the subject-matter of the lis so that the beneficiary of the final verdict can enjoy the fruits thereof. It is the general authority of a sovereign forum as a court-as opposed to a private forum or a forum of limited jurisdiction as a tribunal-that it enjoys certain powers which are incidental to the court's obligation to do justice. Such power inheres in a court by virtue of the court being the face of the sovereign while dispensing justice. Thus, despite no law providing for an anti-suit or an anti-arbitration injunction, the general equitable jurisdiction of grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was accorded, not as an act of courtesy, but on considerations of justice. The Supreme Court held that it (was) implicit in that process, that the foreign law must not offend against our public policy . On the aspect of comity, the Supreme Court entered (in para 17 of the report), the following critical observations: The phrase comity of nations which owes its origin to the theory of a Dutch Jurist, John Voet, has, however, been widely criticised as grating to the ear, when it proceeds from a court of justice [De Nova, (1964) 8 American Journal of Legal History, pp. 136, 144 citing the early American author, Livermore]. Comity, as said by Livermore is a matter for Sovereigns, not for Judges required to decide a case according to the rights of parties. In para 18 of the report, the Supreme Court went on to observe that no country is bound by comity to give effect in its courts to depose laws of another country which are repugnant to its own laws and public policy . This principle, which essentially applies to the application of laws of one country, to persons situated in another would, in my opinion, apply equally to the recognition required to be accorded to the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in respect of the anti-suit injunction proceedings pending before the foreign court was in that case, sought while the anti-suit injunction application was pending, whereas, in the present case, the anti-suit injunction application has proceeded to judgment, and injunction, against enforcement thereof, is sought. 34. IPCom was the proprietor of EP 268, a European Patent, which was an SEP. IPCom alleged infringement, of said European Patent, by certain Lenovo companies based in the UK ( the UK Companies , in short). IPCom offered to license the use of its patent to Lenovo on terms which, according to it, were FRAND, but Lenovo was, according to IPCom, holding out , meaning that it was merely protracting the exercise, without either accepting or rejecting the offer categorically. In March 2019, IPCom made a final offer, indicating that, if the offer was not accepted by Lenovo by 15th March, 2019, IPCom would seek injunction. A day earlier, i.e. on 14th March, 2019, the US Companies of the Lenovo group filed proceedings, before the California District Court, against IPCom, seeking fixation of a global FRAND rate for IPCom's patent portfolio. IPCom filed its infringement pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equally seminal is para 48 of the decision, which emphasises the position that the relief sought in the High Court-for injunction against infringement of EP '268-could not be sought before any other forum, and certainly not before the California District Court: The application before me is directed at the substantive question of which Court should [determine] the issues of infringement and validity of EP 268. The first matter I must consider is whether England is clearly the more appropriate forum in which to decide those issues. Very clearly, it is. The grant of patent is an act which can be performed only by a state. Therefore the validity of a patent is an issue reserved for the course of the granting state, at least in Europe It would surprise me to learn that the rules of jurisdiction applicable in the US court would allow that court to decide whether EP 268 is validly registered in the UK. (Emphasis supplied) 37. Paras 50 and 51 went on to elucidate why, in the opinion of the UK Patents Court, allowing the anti-suit injunction application, preferred before the California District Court, to continue to be prosecuted by Lenovo, would be oppressive and vexati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title and exclusive right of exploitation , (ii) Article L. 615-1 of the Intellectual Property Code which provided that any infringement of the rights of the owner of the patent, as defined in Articles L. 613-3 to L. 613-6 constitutes an infringement , (iii) Article 1 of Protocol 1 of the European Convention on Human Rights, according to which every natural or legal person is entitled to the peaceful enjoyment of his possessions and not to be deprived thereof except in the public interest and subject to the conditions provided for by law and by the general principles of international law , (iv) Article 17 of the Charter of Fundamental Rights of the European Union which expressly included intellectual property in this protection and (v) Articles 6 1 and 13 of the European Convention on Human Rights, which provided to everyone the right To have their case heard fairly, publicly and within a reasonable time by an independent and impartial tribunal, and to the right to an effective remedy before a national authority . 40. Lenovo sought to contend, before the Paris Court of Appeal-as have the defendants sought to contend before me-that the anti-suit injunction, as soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a product known as the World Programming System (WPS). The WPS emulated the SAS System as closely as possible, so that programs, of the customers of WPS, could be executed, when run on WPS, as on the SAS System. For this purpose WPL took a license of the SAS Learning Edition from SAS. The terms of the license prohibited the use of the software to produce a competing product. Violating this, WPL sought to replicate the functionality of the SAS System in its own WPS Software. 43. SAS sued WPL in England, alleging copyright infringement and breach of contract. The claims were rejected by a single Judge, on the ground that the terms of the license granted by SAS to WPL, for the SAS Learning Edition were null and void. SAS's appeal, against this decision, was also dismissed. These proceedings have been referred to, in the judgment of the Court of Appeal, as the English proceedings . 44. SAS also sued WPL, alleging, inter alia, copyright infringement and breach of contract, in a North Carolina court. The North Carolina court allowed SAS's claim of breach of contract, but dismissed its claim of copyright infringement. An additional claim, by SAS against WPL, on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Turnover Order was to require WPL to transfer, to the US Marshal, all receivables arising from business conducted between WPL and its customers. It was an admitted position that there was a substantial risk that the California Court would pass these orders. 47. WPL applied, in the English Court, for an interim anti-suit injunction. On 21st December, 2018, a learned Judge of the English Court (Knowles, J.) granted injunction as sought, prohibiting SAS from taking steps to seek either of the aforesaid proposed orders or any similar relief from any court in the US, and, additionally, prohibiting SAS from taking any step before any US court to restrain the anti-suit injunction application filed by WPL in the English Court. 48. In March 2019, the North Carolina court passed an order in favour of SAS, preventing WPL from licensing WPS to new customers in the US, till the judgment for US $ 79 million was satisfied. An appeal, preferred thereagainst, by WPL, was dismissed by the Court of Appeal. Critical comments were entered, in the said decision, on the English Court undermining the finality of the judgment of the California court. 49. By order dated 27th September, 2019, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to refer to the cases dealing with anti-enforcement injunctions. These are cases where the foreign proceedings have proceeded as far as judgment and the unsuccessful defendant seeks an injunction from the English court to restrain the successful claimant from enforcing the judgment. Ms. Carss-Frisk submitted that such injunctions may only be granted in exceptional cases, supporting the judges approach that, in general, it would be necessary for an applicant to show conduct akin to fraud or, at any rate, of similar gravity. Mr. Raphael acknowledged that such injunctions would be rare, but submitted that exceptionality was not a distinct jurisdictional requirement. 93. In my judgment there is no distinct jurisdictional requirement that an anti-enforcement injunctions will only be granted in an exceptional case. Such injunctions will only rarely be granted, but that is because it is only in a rare case that the conditions for the grant of an anti-suit injunction will be met and not because there is an additional requirement of exceptionality. That accords, in my judgment, with the approach of Lawrence Collins LJ in Masri v. Consolidated Contractors International (UK) Ltd. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction has been granted simply on the basis that the proceedings sought to be restrained were commenced in breach of an exclusive jurisdiction or arbitration clause. 119. This dearth of examples is not surprising. If, as has been heretofore been thought to be the case, an applicant for anti-suit relief needs to have acted promptly, an applicant who does not apply for an injunction until after judgment is given in the foreign proceedings is not likely to succeed. But he may succeed if, for instance, the respondent has acted fraudulently, or if he could not have sought relief before the judgment was given either because the relevant agreement was reached post judgment or because he had no means of knowing that the judgment was being sought until it was served on him. That is not this case. (Emphasis supplied) 53. The Court of Appeal went on to make certain telling observations on the concept of comity, which remains a tantalisingly elusive concept, especially in the context of anti-suit injunctions. Many and varied have been the shades of judicial opinion, on the comity concept, and paras 100 to 112 of the judgment in SAS Institute 2020) EWCA Civ 599 provide a valuable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asri v. Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625, [2009] QB 503 at [86] Lawrence Collins LJ said this: In Bank of Tokyo Ltd. v. Karoon (Note) (1987) TC 45, 58, Robert Goff LJ referred to Judge Wilkey's statement in Laker Airways Ltd. v. Sabena Belgian World Airlines (1984) 731 F 2d 909, 926-927 that anti-suit injunctions were most often necessary (a) to protect the jurisdiction of the adjoining court, or (b) to prevent the litigant's evasion of the important public policies of the forum, and concluded (1987) AC 45, 60: 'without attempting to cut down the breadth of the jurisdiction, the golden thread running through the rare cases where an injunction has been granted appears to have been the protection of the jurisdiction; and injunction has been granted where it was considered necessary and proper for the protection of the exercise of the jurisdiction of the English court.' 111. Fourth, however, comity is a two-way street, requiring mutual respect between courts in different states. This need for mutual respect means that comity requires recognition of the territorial limits of each court's enforcement jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to consider whether such an injunction should be refused as a matter of discretion, having regard to issues of comity, delay and submission. Of these, comity would present the most serious obstacle but, for the reasons I have explained, would not in my judgment prevent the grant of injunction. It is notable that SAS has not so far sought, and the United States courts have not indicated that they would be prepared to grant, an Assignment Order extending to debts due from WPL customers in the United Kingdom. It may be that this forbearance involves some recognition of the exorbitant effect of such an order and the proper role of the English court in relation to such debts. Whether or not that is so, such an order would be exorbitant in the sense that I have described, which means that relatively little, if any, weight should be given to comity as a factor telling against the grant of an injunction. While it would be a matter of regret to grant an injunction which would risk causing offence to a United States court, it would in my judgment be our duty to do so. 55. In conclusion, the Court of Appeal injuncted SAS from seeking an Assignment Order, or a Turnover Order, relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court will consider what relief should be granted. Conversant says that it is willing to grant a license on FRAND terms and (subject to some equivocation) the Defendants say that they are willing to take a license on FRAND terms. There is a dispute between the parties as to whether a global license would be FRAND. 69. Whether such relief should be granted in the present case will be a matter for the FRAND trial, if liability is established. If these claims were stayed on the basis of forum non conveniens, then the consequence would be that the English court could not decide upon infringement of UK patents, and could not decide what relief it would be appropriate to grant where such patents are infringed. That, in my judgment, would not be in the interests of all the parties and the ends of justice. (Emphasis supplied) 58. The Court of Appeal, in the appeal against this decision, observed thus, towards the commencement of its discussion: 97. It is clear that one may get different answers to the forum conveniens questions depending on the level of generality at which one characterises the dispute. It is possible to define the dispute both in a way which is too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of Chinese law, if admitted, could not influence this outcome. Even taken at its highest it does not suggest that the Chinese court could inquire into the validity of UK patents. ***** 110. The fallback positions advanced by the appellants are not, to my mind, properly applications of the forum non conveniens principal at all. As the analysis in Unwired CA Unwired Planet International Ltd v. Huawei Technologies Co Ltd, (2018) EWCA Civ 2344 shows, consideration of the offers made by the parties against the FRAND criterion is an embedded part of the determination of whether Conversant is entitled to relief for infringement of their UK SEPs. Whether one views consideration of these offers as a precondition for liability or relief, or part of the defence which the appellants will offer to the claim, it is not a claim which is capable of being treated separately for forum conveniens purposes. (Italics and underscoring supplied) 61. The matter travelled up to the UK Supreme Court. For the purposes of the present dispute, paras 95 and 96 of the opinion of the Supreme Court alone merit reproduction, thus: 95. The question how the dispute should be define ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the issues which would arise for consideration in that case, and that exercise could more conveniently be undertaken by the court in another country, as the dispute raised by the SEP holder was essentially of infringement of the patents, and not fixation of the terms of a global FRAND license, and (ii) a challenge to jurisdiction on the ground of forum conveniens could succeed only if the challenger were to cite another forum which would be more convenient for the lis to be adjudicated. Ecobank Transnational Inc (2016) 1 WLR 2231 63. Mr. Kaul referred me to various paras of the decision of the UK Court of Appeal in Ecobank Transnational Inc. (2016) 1 WLR 2231. I do not deem it necessary to refer to the said paras in detail, primarily because they essentially emphasize the exceptional nature of anti-enforcement injunctions, regarding which Mr. Banerjee, too, does not seriously join issue-though, he would submit, anti-enforcement jurisdiction is not as exceptional as Mr. Kaul would seek to make it out to be. It is not necessary to refer in detail to these paras, because, after entering the aforesaid cautionary note, the Court of Appeal returned the findings reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to anti-suit injunctions, with sufficient clarity, it is hardly necessary to refer to the principles contained in these paras. Suffice it to state that a reading of paras 64 to 68 reveals that there is no real difference in the law relating to grant of anti-suit injunctions as it is applied in Singapore, vis- -vis the law as it applies in India. Para 69 cautioned that, even though anti-suit injunctions are operate in personam, they nevertheless indirectly interfere with foreign proceedings, which was inconsistent with normal relations between friendly sovereign states. For this reason, anti-suit injunctions, it was advised, were to be granted with caution. Again, on this principle, there can be no two views. 67. Paras 89 and 90 recognised the difference between anti-enforcement injunctions and anti-suit injunctions, and opined that the degree of caution, while considering a prayer for anti-enforcement injunction, was required to be greater than when considering a prayer for anti-suit injunction, because of the way they interfere with foreign proceedings . Paras 97 and 98 referred to the principles in Ecobank Transnational Inc. (2016) 1 WLR 2231. Thereafter, the Court of Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be recognised and enforced; and secondly, it would be an indirect interference with the execution of the judgment in the jurisdiction where the judgment was given and where the judgment can be expected to be obeyed. (d) There is, therefore, an additional requirement to show that there are exceptional circumstances that warrant the exercise of the court's jurisdiction. Such recognised exceptions include cases of fraud and cases where the applicant had no knowledge that the judgment was being sought until after the judgment was rendered. In respect of these exceptions, the equities of the case lie in favour of granting the anti-enforcement injunction. (Italics and underscoring supplied) Microsoft Corp. v. Motorola Inc. 696 F. 3d. 872 (9th cir. 2012) judgment dt 28th September, 2012, by the US Court of Appeals, 9th Circuit 69. Mr. Kaul places considerable reliance on this decision, of the United States Court of Appeals. 70. In October 2010, Motorola sent letters to Microsoft, offering to license, inter alia, various SEPs, of which Motorola claimed ownership, and which were essential to the H. 264 standard. This list included, apart from US patents, paten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough Motorola's commitments to the ITU involved approximately 100 patents held by it, the German proceedings were initiated by Motorola only in respect of two of the said patents, seeking injunctive relief in respect of the said two patents before the Washington District Court could adjudicate on the propriety of injunctive relief in the FRAND context, i.e. the precise issue brought before the German court by Motorola, which raised concerns of forum shopping and vexatious litigation. Note was also taken of the fact that Microsoft and Motorola were both US corporations and that the facts took place within the jurisdiction of the US Court. 73. Motorola appealed. Given the extent of reliance placed by Mr. Kaul on the decision of the Court of Appeal, it is necessary to understand how, and why, the Court of Appeal decided as it did. 74. The Court of Appeal examined the issue from the perspective of the criteria laid down in its own earlier decision in E J Gallo Winery v. Andina Licores 446 F. 3d. 984, 989 (9th Cir. 2006) [ Gallo , hereafter], which were, firstly, whether or not the parties and the issues are the same in both the domestic and foreign actions, and whether or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court's interpretation of Motorola's litigation decisions may not be the only possible interpretation, it is not illogical, implausible, or without support from inferences that may be drawn from the facts in the record , and, therefore, it could not be held that the District Court abused its discretion at this stage of the Gallo 446 F. 3d. 984, 989 (9th Cir. 2006) analysis . It may be relevant to note that the Court of Appeal did not proceed to examine the correctness of the finding, of the District Court, regarding satisfaction of the second Unterweser factor, of the German litigation prejudicing equitable considerations. (iii) The impact of the grant of anti-suit injunction on comity was tolerable. 75. Significantly, a specific contention was urged by Motorola, before the Court of Appeal, that the grant of anti-suit injunction by the District Court disabled Motorola from enforcing its German patents before the only forum competent to rule in that regard. This argument was rejected by the Court of Appeal, in the following terms: Motorola further alleges that the anti-suit injunction must be overturned because it has disabled Motorola from enforcing its Ger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a prayer for injuncting the opposite party from continuing to prosecute a proceeding pending in a foreign Court, with a prayer for injuncting execution of an order passed by the foreign Court. It would be completely unrealistic for a Court not to recognise the distinction between these two categories of cases. Even on the aspect of immediacy and urgency, there is a fundamental qualitative distinction between them. This is obvious, and I need hardly dilate on the topic. In plain speak, there is really no comparison between a prayer for restraining further prosecution of proceedings pending in a foreign Court, with a prayer for restraining execution, against the Indian litigant, of an order passed by a foreign Court. 81. Execution-as is apparent even from this case-presents a real, live and imminent danger. As the discussion heretofore reveals, the pre-eminent test, in the matter of grant of anti-suit injunctions, is whether the foreign proceedings are vexatious or oppressive . The extent to which the vexatious or oppressive test may apply, in the case of an anti-enforcement injunction, in my view, may itself be a somewhat vexed issue. No proceeding is pending before the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the anti-suit injunction application having never been disclosed to the plaintiffs by the defendants, despite ample opportunities in that regard having existed, the plaintiffs were denied an opportunity to seek any restraint against the defendants proceeding with the application, or even from contesting the application in Wuhan. This has resulted in the order dated 23rd September, 2020, being passed by the Wuhan Court. The defendants have, therefore, resorted to unfair practice in securing the order dated 23rd September, 2020 behind the back of the plaintiffs (as would be elucidated in greater detail hereinafter), and it would be contrary to the most basic norms of natural justice and fair play to allow the plaintiffs to be prejudiced for that reason. I am, therefore, convinced that the scope of examination, in the present case, has also to extend to assessing whether a case for grant of anti-anti-suit injunction injunction , restraining the defendants from prosecuting the anti-suit injunction application filed by them before the Wuhan Court, could be said to have existed, had the plaintiffs approached this court for such relief at that stage. To that extent, therefore, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpetuation of injustice. Justice, it is well settled, is the highest to which the law can attain. 85. The three principal decisions of the Supreme Court, on the aspect of anti-suit injunctions, are O.N.G.C. (1987) 1 SCC 496, Modi Entertainment Network (2003) 4 SCC 341 and Dinesh Singh Thakur (2018) 17 SCC 12. 86. These decisions have already been examined earlier in this judgment. O.N.G.C. (1987) 1 SCC 496 provides a textbook example of when continuation of the proceedings in the foreign Court, or any order or decree resulting therein, could be treated as oppressive to the Indian anti-suit injunction applicant. That case revolved around two arbitral awards, rendered under the Arbitration Act, 1940 ( the 1940 Act ). Under the 1940 Act, an arbitral award was not enforceable unless and until it was made the rule of court, under Section 17 thereof, but was amenable to challenge under Section 30 and 33. ONGC challenged the awards before the High Court, under the said provisions. In the meanwhile, the respondent Western Company of North America, which was the beneficiary of the awards, approached the American Courts, for confirmation thereof, even while accepting that the 1940 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contractual disputes and the existence of exclusive jurisdiction clauses therein. The suit filed in this Court, and the complaint filed in the US Court, in Magotteaux Industries 2008 (155) DLT 73 (DB), were both actions against infringement of patents, the Indian action being directed against alleged infringement of Indian patents and the US action being directed against alleged infringement of US patents. This Court held, in paras 57 and 58 of the report, that the courses of action propelling the Indian and the US litigation were different, thus: 57. It appears that the causes of action in both the matters are different and occur on different dates which becomes relevant for the consideration of the grant of anti suit injunction. In Suit No. 189/06 there was no specific averment that the respondent has appointed two companies in USA and Italy to deal with the product i.e. composite wear components in question. It was also not alleged by either of the parties that the respondent has actually been exporting the product in question under the infringement of Patent of appellant No. 2 granted in India nor there is any averment by the Appellants or respondent that the respondent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of grant, or not grant, of an anti-suit injunction or an anti-enforcement injunction, are also to be found in other Indian decisions, as well as overseas decisions, on which learned Senior Counsel have relied. Though, no doubt, Indian Courts, including the Supreme Court, have pronounced on the circumstances in which anti-suit injunctions may be granted, sufficient room for play in the joints still remains, in view of the use of the words oppressive , vexatious and interests of justice . No well delineated boundaries, within which the existence, or non-existence, of these parameters, could be gleaned, are to be found in any judicial authority. Indeed, the moment the ends of justice are predominant, there can never be any hard or fast rule, or guidelines cast in iron. I find myself, however, in agreement with the following general principles relating to anti-suit and anti-enforcement injunctions, emerging from foreign jurisprudence, to which my attention has been invited during the course of arguments: (i) An anti-suit injunction should be granted only in rare cases, and not for the mere asking. The Court should be mindful of the fact that even an injunction in person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt having jurisdiction to try to suit: Provided that where our counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim shall be transferred to the High Court for decision. (vi) Comity, as a concept, was grating to the ear, when it proceeded from a court of justice. Ref. Satya Ref. Satya 1975) 1 SCC 120 Where the proceeding or order, of which injunction was sought, was oppressive to the applicant seeking injunction, comity was of relatively little importance, as a factor telling against grant of such injunction. Even if grant of injunction, in such circumstances, was likely to offend the foreign Court, that consideration could not operate as a factor inhibiting against such grant. Ref SAS Institute (2020) EWCA Civ 599 Considerations of comity were, moreover, subject to the condition that the foreign law, or the foreign proceeding or order was not offensive to domestic public policy Ref. Ecobank (2016) 1 WLR 2231, SAS Institute (2020) EWCA Civ 599 or customary international law. 104. Jurisdiction No suit for declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f anti-enforcement injunction. 89. The entire controversy in the present case may be divided into two aspects; firstly, whether the Wuhan Court was justified in granting anti-suit injunction, vide its order dated 23rd September, 2020, and, secondly, whether this Court would be justified in injuncting the respondent from enforcing that order against the plaintiffs. The issue of the relief to which the plaintiff, if at all, would be entitled, would, of course, follow thereafter. Justification of the Wuhan anti-suit injunction order 90. I am acutely conscious of the fact that I am not sitting in appeal over the order, dated 23rd September, 2020, of the Wuhan Court. Nonetheless, one of the factors which has to be borne in mind by this Court, in deciding whether to restrain the defendants from enforcing, against the plaintiffs, the order of the Wuhan Court, is unquestionably the justifiability of such order. If the order is justified, and passed on considerations which are, on their face, legitimate, this Court would be acting in gross excess of its jurisdiction in restraining enforcement of the order, merely on the ground that such enforcement might prejudice one of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spond or reply thereto. (vi) Instead of respecting and coordinating with the Wuhan Court to proceed with the litigation procedures, the plaintiffs started emergency initiation of injunction procedures before this Court to exclude the jurisdiction of the Wuhan Court and counteract the proceedings before it, thereby deliberately interfering with the said proceedings. (vii) The present proceedings pending before this Court might result in an adjudication conflict with the adjudication of the Wuhan complaint. (viii) This, in turn, would impact the conclusion of a SEP license agreement between the plaintiff and the defendants and lead to difficulties of enforcing the effective adjudication of the case before the Wuhan Court. (ix) The present proceedings before this Court would necessarily impact on the operation of the defendants and their affiliated companies in the Indian market, resulting in a great harm to the interests of the defendants, which was irreparable. (x) If the Wuhan Court were not to stop the present proceedings in time, there was a possibility that they would imperil the positive development of the licensing negotiation between the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation between the parties, thereby harming the defendant's interests, or that (v) the plaintiffs are, allegedly, NPEs (which finding Mr. Banerjee emphatically refutes), or that (vi) the plaintiffs were seeking prior profits by FRAND licensing negotiation and litigations. While reiterating that I am not sitting in appeal over the findings or observations of the Wuhan Court, I merely seek to observe that these factors are not recognised as factors for grant of anti-suit injunction, in any jurisdiction of which I am aware, or any legal authority to which the defendants have drawn my attention. Nor, for that matter, does the order of the Wuhan Court refer to any such decision or authority. 93. The surviving considerations, in the order of the Wuhan Court, are (i) that the acts of the plaintiffs indicated disrespect to the procedure of the Wuhan Court, and an intention to interfere with the said proceedings, (ii) that the plaintiffs, despite being put on notice, had not responded, or caused appearance before the Wuhan Court, (iii) instead, the plaintiffs were seeking, by initiating the present proceedings before this Court, to exclude the jurisdiction of the Wuhan Court and delib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants in those proceedings. Though notice is stated to have been issued, twice, to the plaintiffs, first on 11th August, 2020 and, thereafter, on 2nd September, 2020, these are, expressly, of the complaint, evidence materials, procedural documents and court summons . Even qua these proceedings/documents, the order goes on to record thus: The complaint, evidence, procedural materials, court summons of the present case is still in the serving process and the Respondents have not signed for the Proof of Service or reply to this Court yet. This Court issued the anti-suit injunction ruling directly, in a sense of behavior preservation. However, this ruling will not prevent the Respondents from exercising remedy of procedural rights i.e. submitting the evidence or expressing its opinions through reconsideration procedures. (Emphasis supplied) Even as regards the main complaint and the documents filed by the defendants, in that regard, the Wuhan Court records, candidly, that service of the complainant and the documents were still in process, but that it was nevertheless proceeding to issue the anti-suit injunction directly , in a sense of behavior preservation . Whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims which are essential to a particular standard, asserts the plaint, requires the entity using the technology to secure a license from the owner of the patents, which the defendants have been unwilling to do, on FRAND terms and conditions. This, asserts the plaint, entitles the plaintiffs to an injunction. Thereafter, paras 30 to 43 of the plaint explains the standards, and paras 45 to 74 explain how the IN '910, IN '912, IN '719, IN '036 and IN '182 suit patents are essential to the said standards. Paras 79 to 84 set out the details of the infringement analysis and testing conducted by the plaintiffs, and para 85 asserts that in keeping with the very definition of essentiality, once the suit patents have been shown to be essential to certain specific standards, it would be impossible on technical grounds for the defendants' devices to comply with the said standards without infringing the suit patents . Paras 86 to 91 explain the plaintiffs FRAND commitment and paras 92 to 94 explain the defendants' obligation to obtain licenses from the plaintiffs on FRAND terms, if they seek to continue to utilize the technology to which the plaintiff's SEPs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty rates offered to Xiaomi. Although Xiaomi had asked for the calculation methods and relevant referred comparable agreements for several times, InterDigital refused to provide any explanation on the ground of the confidentiality clauses in other licensing agreements. Thus, the royalty rates directly provided in its offer cannot be deemed as a reasonable and sufficient basis. Second, the rates offered by InterDigital to Xiaomi are much higher than the rates offered by other SEP licensors. Xiaomi has always respected the intellectual property rights of others and is willing to enter into licensing agreements with SEP licensors on FRAND terms. Up to now, Xiaomi has entered into licensing agreements with several SEP licensors in the industry. Compared with those of the licensors, InterDigital has offered royalty rates that are much higher and are inconsistent with the quality and quantity of its SEPs. Third, the royalty rates offered by InterDigital are disproportionate to the relevant proportion of the SEPs held and granted to be licensed by InterDigital compared to all other SEPs covering relevant standards, which would lead to an excessively high cumulative royalty rate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of infringement, by the defendants, of the suit patents or, for that matter, of any of the patents of the plaintiffs, is not going to be addressed by the Wuhan Court, while adjudicating the defendants' complaint; or, at any rate, that the defendants have not called upon the Wuhan Court to address that issue, directly or indirectly. It is also significant that the present suit concerns itself only with six of the plaintiffs' patents, granted in India, whereas the Wuhan complaint is apropos the entire portfolio of all SEPs held by the plaintiffs. The scale and sweep of enquiry in the Wuhan complaint is also, therefore, decidedly different from that in which this Court has been called upon to engage itself, in the present proceedings. In this context, there is also, prima facie, substance in the contention of Mr. Banerjee that, unlike the Wuhan proceedings, the present suit does not concern itself with fixation of any global FRAND rate for the entire portfolio of the plaintiffs SEPs. This Court is required to address itself to the aspect of infringement of the specified patents forming subject matter of these proceedings, and, if necessary, determination of the FRAND royal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 (Pat) (supra) apply, mutatis mutandis, to the present case. I agree with Mr. Banerjee in his contention that the degree of overlap-and, for that matter, the nature of overlap-between the present proceedings and the Wuhan proceedings is not such as would justify the present proceedings being brought to a halt, pending disposal of the Wuhan proceedings. 102. Mere overlap of issues is not regarded, either by the law in this country or in any other jurisdiction, as sufficient to grant anti-suit injunction. It is only where the overlap results in the foreign proceedings being rendered oppressive or vexatious that anti-suit injunction may be justified. If one were to examine the present case on this anvil, the position that emerges is that, while the Wuhan Court may not have been justified in granting anti-suit injunction, this Court would certainly be justified in injuncting the defendants from enforcing, against the plaintiffs, the order dated 23rd September, 2020 of the Wuhan Court. I am not convinced with the submission of Mr. Kaul that, merely because determination of a FRAND compliant royalty rate may be an issue which arises for consideration in the proceedings before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument, that one of the Courts were to arrive at a decision prior in point of time to the other, it would always be open to the latter Court to follow, or distinguish, the decision of the former, or take a different view. The defendants do not seek to contend that the order of this Court would bind the Wuhan Court, or vice versa. It would, therefore, be too simplistic to treat the mere apprehension of a possibility of two views, on one issue, resulting, as justifying a Court in one sovereign jurisdiction injuncting, in its tracks, proceedings in another. In the present case, however, as the issues before this Court and before the Wuhan Court, despite some degree of overlap, are fundamentally distinct, and the proceedings before this Court could not have been preferred before any other jurisdiction, least of all Wuhan, the conflicting orders conundrum may not assume much significance. 105. Jurisdiction to adjudicate on the dispute in the present suit vests only in this Court 105.1. Section 104 of the Patents Act 104. Jurisdiction No suit for declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not have the jurisdiction to grant the relief sought by the plaintiff in IA 6440/2020. The result of allowing the anti-suit injunction order passed by the Wuhan Court to be enforced by the defendants against the plaintiff would be that the plaintiff is completely prohibited-till the Wuhan Court lifts or vacates the anti-suit injunction-from prosecuting its claim for injunction against infringement, by the defendants, of the suit patent, that in such case either the leave of the Code is given, or the defendants who do not reside, or carry on business, or personally works again, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. as this claim can be prosecuted only before this Court, and before no other court, least of all before the Wuhan Court. It is not, therefore, a situation in which the claim of the plaintiff could equally be prosecuted before the Wuhan Court. The Wuhan Court, which does not possess the jurisdiction to decide the issue of infringement of the plaintiff patent has, by the order dated 23rd September, 2020, interdicted the plaintiff from prosecuting the said claim before the only Court which has the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction of the plaintiff sought to be rejected, fails to impress. The question of an unseemly race would arise where the nature of the reliefs sought by the plaintiffs in the defendants is similar. It is not so in the present case. The plaintiffs seek injunction against infringement of their suit patents, whereas the defendants seek fixation of a global FRAND rate, for the entire portfolio of the plaintiffs' patents. The plaintiffs and the defendants are not, therefore, racing towards the same goal. 109. Before concluding the discussion, it is necessary to deal with the Microsoft 696 F. 3d. 872 (9th cir. 2012) judgment dt 28th September, 2012, by the US Court of Appeals, 9th Circuit decision, on which Mr. Kaul placed considerable emphasis. As already noted in para 75 supra, a specific contention, advanced before the Court of Appeal, that grant of anti-suit injunction would disable Motorola from enforcing its German patents before the only court competent to adjudicate thereon, was rejected. The Court of Appeal felt that this submission, of Motorola, exaggerated the scope of the injunction, as Motorola could continue, despite the anti-suit injunction, to continue agi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther aspect of the controversy may overlap cannot be a ground to grant such injunction. Nor can the consideration of the two courts arriving at differing decisions on that part of the issue which may overlap be regarded as sufficient to grant such injunction, which would result in denying the plaintiff seeking injunction against infringement the right to agitate such claim before the only forum competent to adjudicate thereon. Such injunction would be ex facie destructive of the principle of comity of courts. It cannot be tolerated even for a day. A clear case for injuncting enforcement, against the plaintiff, before the court before whom the action for infringement is brought, of such a diktat is, therefore, made out. Grant of anti-enforcement injunction is, therefore, imperative in such a case. 111. The right of the citizen, in this country, to legal redressal to ventilate his legitimate rights, is hallowed, sacred, and fundamental. It is a sanctified and preambular constitutional goal, and derives sustenance from the most sublime of our fundamental rights, including those consecrated by Articles 14 and 21. It is an inviolable and inalienable facet of access to justice. Refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiffs, the order dated 23rd September, 2020, of the Wuhan Court, passed in such circumstances. 115. The inaction, on the part of the plaintiffs, in responding to the summons issued by the Wuhan Court in the complaint of the defendants, cannot wish away this default. Even as on date, the plaintiffs are not opposing the continuation of the proceedings in the Wuhan complaint. It is completely unfair, therefore, on the part of the defendants, to seek to capitalize on that default, in an attempt to justify the passing of the anti-suit injunction, by the Wuhan Court, without the plaintiffs even been made aware of the pendency, or even the filing, of the anti-suit injunction application. Re. Prayer (iv) 116. Prayer (iv), which Mr. Banerjee pressed, seeks imposition of costs, on the defendants, equivalent at least to the fine with which the order, dated 23rd September, 2020, of the Wuhan Court, mulcts the plaintiffs, in the event they continue to prosecute their application for injunction before this Court. The prayer has merit. One of the defences taken by the defendants is that they are powerless to prevent any order, by the Wuhan Court, requiring the plaintiffs to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff or the defendants. Given the findings heretofore, it would be the defendants who have to suffer. The troika considerations 118. Applying the troika test of prima facie case, balance of convenience and irreparable loss, therefore, grant of anti-enforcement injunction, as sought by the plaintiffs, would be eminently justified. The plaintiff has a clear prima facie case against enforcement of the order by the defendants, in view of the findings heretofore. If the order were to be permitted to be enforced, irreparable loss is bound to occur to the plaintiffs, as the plaintiffs would be unable to prosecute the only remedy available to them against the (perceived) infringement of their suit patents, and would also stand exposed to the fine imposed by the Wuhan Court for pursuing their legitimate legal remedies in this country. As the plaintiffs are not seeking any restraint against the defendants continuing to prosecute their complaint before the Wuhan Court, whereas the order of the Wuhan Court brings the present proceedings to a grinding halt, without due justification, the balance of convenience would also be in favour of grant of anti-enforcement injunction as so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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