[Editor’s note: Due to the large number of queries around this – I would like to point readers to this other post here which explains why orders such as this present one are problematic and probably bad in law]
[Edit 2: The order is now available here]
Yesterday, the Delhi High Court granted an ex parte injunction order against Chinese operator Xiaomi for infringement of Ericsson’s patents. The patents in question are Standard, Essential Patents (SEPs) which are subject to FRAND (Fair, Reasonable and Non-Discriminatory) terms. However, they may also be the same patents which are the subject matters of litigation Ericsson has mounted against Micromax, Gionee and Intex. As Shamnad Sir noted earlier today, while Ericsson has largely favourable orders against Micromax and Gionee, the same cannot be said for its case against Intex. Therefore, when the same patents are potentially in question under other cases as well, there was no need for the Courts to rush to grant an injunction against a new defendant, namely Xiaomi.
At this juncture, it is more interesting to note the reasons provided for granting the said injunction. One factor that the Court found persuasive was that Xiaomi had not responded to Ericsson’s repeated communications (6 in number from July 2014). However, it must be questioned whether Xiaomi’s purported laxity in this matter is a sufficient reason to grant an injunction against them. More so, when an alternative remedy in the form of damages is available which is one of the cardinal principles that goes against the granting of injunctions.
This ex parte order injuncts Xiaomi from selling, advertising, manufacturing or importing devices that infringe the SEPs in question. The judge also directed the Customs officials to stop the imports under the IPR Rules, 2007. Moreover, local commissioners have been appointed to visit Xiaomi officers to ensure the implementation of these orders.
This leads us to the question of whether the TRIPS Rules, 2007 are over-reaching in their mandate. Article 51, TRIPS agreement only stipulates border control mechanisms for copyright and trademark related matters and not for patents. However, the same appear to be included under India’s IPR Rules, making them TRIPS plus.
Moreover, even under domestic law, the Patent Act read with the Civil Procedure Code requires patent suits to be decided by a District Judge at the lowest level and the High Court to have jurisdiction if there is a counterclaim to the suit. Therefore, the Customs Officers do not have the jurisdiction to decide the issues of infringement or validity. The High Court has previously acknowledged that other officials such as the Drug Controller General of India did not possess the technical expertise to deal with matters relating to patentability and patent infringement. (Bayer Corporation v. UOI dated August 18, 2009).
Therefore, it appears that this order of the Delhi High Court’s injunction order is not in conformance either with international practice or domestic case law.
Well…. I dont know what Law Law Blah blah blah is written in this article..
But if a new company enters in market and become more popular than existing ones , ban it ?? What cheap and lame strategy is this ?
Samsung , sony and this jerk Ericsson …why you dont make phones whose costs are as lower as Xiaomi phones and specifications as higher than Xiaomi’s ??
All about these names i mentioned above are afraid of Xiaomi than how can a company become so popular in just 3-4 years ? Trust me…in 2016 ,Xiaomi will be 1st in whole world…
I am a proud Xiaomi Redmi 1S owner
Law doesn’t work on emotions my dear friend, in order to run a business in a country the business owner must comply with the local law.
Here although the Delhi HC orders are unusual(as expected). Xiaomi needs to comply with the rules and regulation to continue business and if they do not they cannot run a business here..or anywhere in world.
talking about samsung, they too copied the design from apple in Galaxy Ace. Apple sued samsung. But samsung was banned ? Hell No. Then why Xiaomi ??
“I dont know what Law Law Blah blah blah is written in this article..”
Then why do you comment on something you obviously don’t understand?
“and this jerk Ericsson”
You’re obligated to protect you patents, otherwise you might lose them.
“why you dont make phones whose costs are as lower as Xiaomi phones”
Is it hard to comprehend that one reason they can be sold cheaper is because Xiaomi doesn’t follow international law?
“Poor Jealous brands”
Ericsson hasn’t made a phone in almost 14 years, how can they be jealous?
“Trust me…in 2016 ,Xiaomi will be 1st in whole world”
If you don’t work there, why do you care? I prefer a healthy competition between many different companies.
NiceAndProper
i have seen you have so many problems with XIaomi..
If you don’t work in Ericsson , why do you care??? Now answer this.
“You’re obligated to protect you patents, otherwise you might lose them.”
What is profit in inventing something and not showcasing it ? You made it just to so others, Ericsson ??
“Ericsson hasn’t made a phone in almost 14 years, how can they be jealous?”
If they havent made phone in 14 years, why they have problem with Xiaomi ? Just because they are not using their Equipments , they use locally manufactured ?
There is a deep partiality done over here. Names of Micromax and Gionee are too in the list. Why only Xiaomi to be banned . Trust me , there is not only Ericsson who filed this petition. There are other brands too which are afraid of Xiaomi.
In my opinion , they too are behind this. They have no competition with MMX and Gionee, so they want to ban Xiaomi only, as india is the largest growing market of cellphones , and no brands want to lose their market.
just to SUE others.. **
“i have seen you have so many problems with XIaomi..”
I have? They’re cheap and kind of boring, but I don’t have any problems with them.
“If you don’t work in Ericsson , why do you care??? Now answer this.”
I’m not defending Ericsson. I care generally about the mobile industry, and you made a bunch of really strange remarks which I just questioned,
“What is profit in inventing something and not showcasing it ? You made it just to so others, Ericsson ??”
Not showcasing…? Once again you prove your ignorance about the industry. Ericsson is one of largest mobile network infrastructure manufacturers.
“If they havent made phone in 14 years, why they have problem with Xiaomi ?”
Because they are infringing on their patens without paying license fee.
“There is a deep partiality done over here. Names of Micromax and Gionee are too in the list. Why only Xiaomi to be banned”
As said in the article, one reason can be that they have ignored all of Ericssons attempts of communication for several months.
I won’t comment on your ending which was just a conspiracy rant.
[Editor’s note: With this comment, I’m ending this particular comment thread. If the participants here want to comment on anything else that has actually been discussed in the post, they are free to do so. Thanks]
Sumon is right here, no one should make a business against laws .
You can imagine that these bigger giants like erricson needs lots of $$ on research to get a new technology for people like you…so how could someone donate them for nothing.
Just ban Xiaomi…i dont want Chinese should draw so much of money from India.
and if samsung copies design patent from apple in making galaxy Ace , thats okay ?
Point to be noted that Micromax, Gionee and Intex are also in this list. then why only XIaomi ?
Xiaomi work hard, day and night to make best and affordable products, other companies are not digesting this. Poor Jealous brands
Aayush please try to understand the amount of money spent in all RnD work. A company does Rnd and get it patented and hence gets money. This money fuels further research. If companies copy and use a technology without licence who will fund all the research work. There is no point of being emotional and blaming your court’s decision.
Update: Its now confirmed that the injunction the court has ordered will be applicable till Feb 5 2015. On Feb 5 both Xiaomi and Ericsson will be called for hearing of the case. So for now it may be assumed that Xiaomi devices ar banned till Feb 5, unless Xiaomi files an appeal (which it probably should) or the the two parties (Xiaomi and Ericcson) settle the case outside of the court.
Update: According to a tweet by the news agency PTI, the Delhi High Court has partly lifted the ban on Xiaomi devices. Xiaomi has not been allowed to sell Qualcomm based devices in India till Jan 8, 2015.
I hope the injunction will help the Xiaom assess if their acts are in conformance with better business practices
Let them do what is right after careful consideration of the two sides – patent right it is…
anything to do with copyright should be clearly defined
I still have some questions pertaining this ” even under domestic law, the Patent Act read with the Civil Procedure Code requires patent suits to be decided by a District Judge at the lowest level and the High Court to have jurisdiction if there is a counterclaim to the suit”
Aayush please try to understand the amount of money spent in all RnD work. A company does Rnd and get it patented and hence gets money. This money fuels further research. If companies copy and use a technology without licence who will fund all the research work.
Thanks!