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Dr. M.V.V.S MURTHI NATIONAL VIRTUAL MOOT COURT COMPETITION, 2023 BEFORE THE HON’BLE HIGH COURT OF MESOMERA IN THE MATTER OF Civil Appeal No. / MR. HENRY MAISON PETITIONER; Versus STATE OF MESOMERA RESPONDENT. Clubbed with Civil Appeal No. / SEPPON TECHNOLOGIES VORMIR Ltd. PETITIONER; Versus MR .HENRY MAISON RESPONDENT. (Under § 226 of The constitution of India, 1950) ~ MEMORANDUM ON BEHALF OF THE RESPONDENT~
MEMORIAL FOR THE RESPONDENT TABLE OF CONTENTS S.No. PARTICULARS Pg.No. 1 List of Abbreviations^3 2 List of Authorities^4 3 Statement of Jurisdiction^6 4 Statement of Facts^7 5 Statement of Issues 8 6 Summary of Arguments^9 7 Arguments Advanced^10 8 Prayer 25
MEMORIAL FOR THE RESPONDENT LIST OF AUTHORITIES TREATIES, CONVENTIONS & STATUTES 1 The Constitution of India, 1950 2 The Indian Copyright Act, 3 The Patent Act, 4 The Trademark Act, 1999 5 The Companies Act, 2013 6 The Patent Rule 2003 7 The Manual of Patent Practice and Procedure, 8 The Digital Personal Data Protection (DPDP) Act, 2023 9 The Information Technology Act , 10 The Consumer Protection Act, 11 The Indian Contract Act, 1872 WEBSITES 1 www.scconline.com 2 www.heinonline.com 3 www.manupatra.com BOOKS 1 M P Jain Indian Constitutional Law, 8 th^ Edition, 2018 2 V.K Ahuja IPR, 24th^ Edition, 2019
MEMORIAL FOR THE RESPONDENT TABLE OF CASES S.NO CASE TITLE PAGE NO. (^1) Adobe Systems Inc. v. Stargate Software Inc. 27 (^2) Artifex Software, Inc. v. Hancom, Inc.(N.D. Cal. June 7, 2017) 23 (^3) AstraZeneca AB and Anr. vs. Orchid Chemicals and Pharmaceuticals Ltd
4 Bajaj Auto Limited v. TVS Motor Company Limited (2009) 27 (^5) Bayer Corporation & Ors vs. Union of India & Ors 18 (^6) Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt. Ltd. (2014)
(^7) Bishnupriya Das vs. Controller of Patents 2013 18 (^8) Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd.(2001) 24 (^9) Dr.S.Mahadevan vs. Dr.S.Balasundaram and others 17 10 Company India Ltd. v. State of Assam^ 13 (^11) Eastern Book Company v. D.B. Modak 16 (^12) Ferrero SPA v. Ruchi International (2009) 27 13 Franz Xaver Huemer v. New Yash Engineers 15 14 Hari Vishnu Kamath v. Ahmed Ishaque and Others 14 (^15) IBM Corp. v. Phoenix Technologies Ltd. 22 (^16) Jacobsen v. Katzer,(Fed. Cir. 2008) 23 17 Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 24 18 Microsoft Corp. v. i4i Ltd. Partnership, 22 19 Microsoft Corp. v. Motorola Inc (9th Cir. 2015) 27 20 Microsoft Corporation v. Yogesh Popat & Anr (1999) 27 21 Moser Baer India Ltd. v. Veer Infotech (2009) 16 (^22) Novartis AG v. Union of India (2013) 16
MEMORIAL FOR THE RESPONDENT STATEMENT OF JURISDICTION The Hon’ble High Court of Mesomera has the required jurisdiction for adjudicating thepresent matter under Article 2261 of The Indian Constitution. Article 2261 of the Constitution Of India 1949,Power of High Courts to issue certain writs 1)Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
- The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,authority or person may also be exercised by any High Court exercising jurisdiction in relationto the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence ofsuch person is not within those territories (a)Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),without furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose ofthe application within a period of two weeks from the date on which it is received or from thedate on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim ordershall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, standvacated Thereby, the petitioner submits this memorial which puts forward the facts and laws on which the claims are framed. (^1) Article 226, Const. India.
MEMORIAL FOR THE RESPONDENT SUMMARY OF FACTS The petitioner most humbly submits before the Court, A. About The Parties Nation of Vormir which is situated in the south-central part of the continent of Pandora. It is a booming economy with a significant young population, contributing to its growth in various sectors, including IT, Automobile, Infrastructure Development, and Telecommunication. Seppon Technologies Limited, which is an electronic appliance manufacturing company, established its subsidiary in Vormir named Seppon Technologies Vormir Ltd. And its goal was to manufacture and sell electronic appliances. Seppon Technologies was facing stiff competition due to outdated products compared to other companies in the market resulting in a loss of market share therefore Seppon Technologies invested heavily in research and development to create a technologically advanced product catering to the young generation's preferences and developed the Stelark Line of refrigerators, featuring IoT and Artificial Intelligence (AI) integration. Conversely , Mr. HenryMaison A freelance engineer and self-trained AI programmer, is a privacy advocate and active in online forums promoting the right to privacy he with his group developed modified software to block audio log creation which was being collected by stelark refrigrators and shared it on their forum with installation instructions. B. Relevant Facts Mr. Henry Maison along with his online forum members accessed Seppon Technologies' refrigerator software. Upon analyzing the code, they uncovered that Seppon's Stelark refrigeratorswere generating audio logs of user conversations and transmitting this data to Seppon's servers forstorage. In response to the discovery of audio logging, Mr. Maison and his associates devised a customized software solution aimed at blocking the generation of audio logs and halting their transmission to Seppon's servers. This modified software was subsequently posted on their forum,complete with detailed installation instructions.Seppon Technologies after getting aware of such development responded to the publicized forum post by initiating legal action. This included the issuance of a cease and desist notice to the
MEMORIAL FOR THE RESPONDENT SUMMARY OF ARGUMENTS I. WHETHER THE WRIT OF QUO WARRANTO IS MAINTAINABLE AGAINST THE STATE OF MESOMERA WITH RESPECT TO GRANTING PATENT? Respectfully, it is asserted before this honorable court that the writ of quo warranto under article 226 of the constitution is not appropriate. Its scope is limited, and it cannot be extended to challenge the state's authority in granting patents. Thus the present writ petition should be dismissed. II. WHETHER THE PATENT GRANTED TO SEPON TECHNOLIGIES VORMIR Ltd. IS SUBJECT TO REVOCATION? It is most humbly submitted that adherence to the established statutory framework for patent revocation, reserving extraordinary writ remedies for exceptional circumstances, and ensuring a fair and just resolution in line with due process and legal precedent. III. WHETHER THERE HAS BEEN INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF SEPPON TECHNOLOGIES VORMIR LTD? It is humbly submitted that the patent's validity is not undermined by an alleged conflict with public morality on the basis of breaching the fundamental right to privacy. The respondents maintain that Mr. Maison's actions constitute an infringement of their legitimate patent and copyright rights IV.WHETHER THE SUIT FILED BY SEPPON TECHNOLOGIES VORMIR Ltd. AGAINST MR. HENRY MAISON FOR 25 CRORE REGARDING INFRINGEMENT OF ITS INTELLECTUAL PROPERTY RIGHT IS MAINTAINABLE? It is humbly submitted that the cease and desist notice and the accompanying suit for ₹25 crores are legally maintainabl.The respondents' rights under patent and copyright law have been violated, resulting in tangible financial and reputational losses that warrant legal redress.
MEMORIAL FOR THE RESPONDENT ARGUMENTS ADVANCED ISSUE 1 WHETHER THE WRIT OF QUO WARRANTO IS MAINTAINABLE AGAINST THE STATE OF MESOMERA WITH RESPECT TO GRANTING PATENT? Respectfully, it is asserted before this honorable court that the writ of quo warranto is not appropriate. Its scope is limited, and it cannot be extended to challenge the state's authority in granting patents. 1) LIMITED APPLICABILITY OF WRIT OF QUO WARRANTO. 2.1 That the respondent firmly asserts that the writ of quo warranto cannot be invoked against the state for granting a patent. Quo warranto is a legal remedy traditionally employed to challenge the appointment or continuance of an individual in a public office. The remedy is aimed at questioning the authority of individuals holding public positions, not the authority of the state in granting patents. 2.2 That Quo warranto proceedings are typically used to determine whether an individual is legally qualified and authorized to hold a specific public office or position. It is not intended to challenge the broader decisions or actions of the state, such as the grant of intellectual property rights like patents and copyrights. 2.3 That This position is grounded in established legal principles and precedents: a) In Dr.S.Mahadevan vs. Dr.S.Balasundaram and others, reported in (1986)^2 at paragraph 21, this Court, held thus:- This Court, within the scope of the enquiry for the issuance of a writ of quo warranto, is not concerned with any other factor except the well laid down factors: which require advertence to and adjudication. The existence of the following factors have come to be recognised as conditions precedent for the issuance of a writ of quo warranto: (1) the office must be public; (2) the office must be substantive in character, that is, an office independent of in title; (3) the office must have been created by statute or by the Constitution itself; (4) the holder of the office must have asserted his claim to the office; and (5) the impugned appointment must be in clear infringement of a provision having the force of law or in contravention of any binding (^2) Dhulabhai v. State of Madhya Pradesh: 413 U.S. 922 (1973).
MEMORIAL FOR THE RESPONDENT disputes typically address past violations rather than seeking to prevent future ones. This is governed largely by the Indian Patents Act, 1970. 2.3) This position is grounded in established legal principles and precedents: a) University of Mysore v. C.D. Govinda Rao (Supreme Court, 1964)
- The Court examined the nature and purpose of quo warranto writs under the Constitution. It observed that quo warranto is meant "to prevent a public office being illegally usurped" and to oust an illegal occupant. The Court described it as a "preventive writ" that serves to prevent an illegality from occurring before it arises.Thus, quo warranto has a precautionary character aimed at preventing illegal assumption of public offices. b) State of Haryana v. Karnal Co-Operative Farmer’s Society Ltd (Punjab & Haryana HC, 2013)^5 The Court analyzed the applicability of quo warranto writs. It characterized quo warranto proceedings as"preventive in nature" and meant to prevent illegal usurpation. The idea is that quo warranto aims to nip the illegality in the bud before assuming office. c)Novartis v. Adharsh Pharma (Delhi High Court, 2020)^6 The Court ruled on a suit for permanent injunction and other reliefs in a patent infringement dispute. After trial, it found the defendant liable for infringing the patented process from 2012 to 2016. Accordingly, it granted a permanent injunction restraining future infringement and awarded damages to plaintiff for the past infringement period. d) Franz Xaver Huemer v. New Yash Engineers (Supreme Court, 1997)^7 The Court examined remedies for patent infringement under the Patents Act. It observed that the usual relief granted in patent matters involves injunctions, damages or declarations of invalidity to remedy past infringements. This contrasts with quo warranto which has a prospective, preventive orientation.The Court awarded damages to the plaintiff for the period of patent infringement by defendant. 3 ) STATUTORY REMEDIES AVAILABLE 3.1That it is most humbly submitted before this hon’ble court that one of the primary grounds for non- maintainability of the present writ petition under article 226 of the constitution is the existence of statutory remedies for challenging patent and copyright grants. In India, there are specific statutory provisions and procedures under the Patents Act, 1970, and the Copyright Act, 1957, for challenging the grant of patents and copyrights. - Relevant Law: Sections 25 and 64 of the Patents Act, 1970; (^5) State of Haryana v. Karnal Co-Operative Farmer’s Society Ltd, Punjab & Haryana HC, 2013. (^6) Novartis v. Adharsh Pharma, Delhi HC, 2020. (^7) Franz Xaver Huemer v. New Yash Engineers, SC, 1997.
MEMORIAL FOR THE RESPONDENT (^8) Section 50 of the Copyright Act, 1957 9 but in the present case the statutory remedies are not exhausted by Mr. Henry Maison before approaching the hon’ble court of Mesomera. 1) Novartis AG v. Union of India (2013), the Supreme Court held that disputes related to patents must be resolved through the provisions of the Patents Act, and the High Court cannot exercise its writ jurisdiction under Article 226. The court acknowledged the specialized nature of patent disputes and the need for adjudication by experts well-versed in patent law. It reinforced the principle that where a statute provides for a specific remedy, that remedy must be exhausted before seeking extraordinary remedies. 2) Eastern Book Company v. D.B. Modak (2008):^10 While this case pertains to copyright, it underscores the principle that the Copyright Act provides a comprehensive mechanism for challenging copyright registrations, and writ jurisdiction should not be invoked to bypass the statutory remedy. **3) Moser Baer India Ltd. v. Veer Infotech (2009):^11 ***** While this case is related to copyright, it establishes the general principle that where a specific remedy is provided under a statute, parties should not bypass statutory provisions and directly approach the court under Article 226. Thus Patents, as a form of intellectual property protection, are typically granted by the state to promote innovation and economic development. The grant of patents is governed by specific legal provisions and is a discretionary function of the state. It is not akin to a public office or position held by an individual, and therefore, challenging the state's authority in granting patents through quo warranto is fundamentally misconceived. ISSUE 2 WHETHER THE PATENT GRANTED TO SEPON TECHNOLIGIES VORMIR Ltd. IS SUBJECT TO REVOCATION? It is most respectfully asserted before this hon’ble court the patent granted to seppon technologies is not subject to revocation (^8) Patents Act, 1970, section 25, 64. (^9) Copyright Act, 1957, section 50. (^10) Eastern Book Company v. D.B. Modak, (2008). (^11) Moser Baer India Ltd. v. Veer Infotech, (2009).
MEMORIAL FOR THE RESPONDENT patent to grant a patent. b.Bayer Corporation & Ors vs. Union of India & Ors^14 In this case, the appellant Bayer Corporation held a patent for a drug named 'Sorafenib Tosylate'. A generic pharmaceutical company, Natco Pharma, utilizing compulsory licensing provisions sought and obtained a license to manufacture and sell this drug. Bayer filed a writ petition to the Delhi High Court under Article 226 for quashing the grant of such a license, which was dismissed. On appeal, the Supreme Court of India also dismissed the plea stating that the Writ jurisdiction should not be exercised in patent matters. The apex court reiterated the sovereign power of the state to grant compulsory licenses on any patent. 2)The patent was granted by the Controller, a specialized statutory authority, after due examination by technical experts as per Sections 12 and 64 of the Patents Act. Grant followed rigorous procedures. 2.1 The respondent emphatically asserts that there has been no impropriety on the part of the state in granting patent and copyright rights to Seppon Technology. The state meticulously evaluates applications for intellectual property rights, including patents and copyrights, to ensure that they adhere to statutory requirements and principles of law. a) In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1982), the Supreme Court was deciding on a patent revocation matter. The Court held that a patent is granted only after careful investigation of the novelty and subject matter of the invention by technical experts at the Patent Office. Accordingly, a patent that has been granted as per the statute carries a strong presumption of validity in law. This presumption of validity can be rebutted only by bringing very sound evidence that there was an error in grant of patent. The bar to displace the presumption is very high.The Court enunciated this presumption of validity to ensure patents granted as per law are not easily revoked or challenged through casual objections and adjudicatory whims. Thus Mr. Maison's allegations of infringement of privacy rights and ethics are merely his subjective views. They cannot override the decision of technical experts at the Patent Office who judged the invention on statutory patentability standards. If Mr. Maison does contest the patent's validity, the law mandates he must do so only through prescribed channels like opposition proceedings and Section 64 revocation petitions. 2.2 Allowing a direct writ petition by passing the statutory scheme violates the doctrine of exclusivity (^14) Bayer Corporation & Ors v. Union of India & Ors, [(2009) 13 S.C.C. 60].
MEMORIAL FOR THE RESPONDENT per precedents like Thansingh Nathmal case. Extra-ordinary writ remedy cannot become the norm. In Thansingh Nathmal v. Superintendent of Taxes, AIR 1964 SC 1419, the Supreme Court cautioned against making writ jurisdiction under Art 226 the normal means to circumvent statutory procedures. The Court held that writ power should be used “in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it”. It cannot become the “normal means” to approach the High Court even in “respect of every order” passed under the statute which is not amenable to revision petitioner. The precedent makes it clear that writ jurisdiction has to be invoked with caution and only under compelling circumstances of excess jurisdiction, not routinely. 3)Due process of law should be followed so as to ensure fairness and justice. 3.1 That It is most humbly submitted before this hon’ble court that writ of quo warranto under Article 226 of the Indian Constitution could amount to a violation of the due process of law if the patent is revoked by this hon’ble court. This is because such a process may not constitute a fair procedure for the Seppon technologies Vormir Ltd. holding the patent, particularly if the petitioner has not followed the proper mechanism outlined in the Patent Act. 3.2 Due Process of Law: That Due process of law is a constitutional safeguard that ensures fairness and justice in legal proceedings. It implies that individuals are entitled to notice, a fair hearing, and adherence to established legal procedures before any deprivation of life, liberty, or propert. Revoking a patent through a writ of quo warranto without following the procedures laid out in the Patent Act might be perceived as a violation of due process, as it could potentially deprive the Seppon Technologies Vormir Ltd. of its property (the patent) without proper legal proceedings. 3.2.1Fair Procedure under Patent Act:** That The Patent Act, 1970, provides specific procedures, such as those outlined in Section 64, for challenging the validity of a patent. These procedures are designed to ensure a fair and comprehensive examination of the grounds for revocation. The Act entrusts the Controller of Patents with the authority to adjudicate on matters of patent revocation, recognizing the need for expertise in assessing the technical and legal aspects of patents. 3.2.2 That Quo Warranto as an Extraordinary Remedy:** :Exceptional Circumstances: Quo warranto
MEMORIAL FOR THE RESPONDENT I. The respondents most humbly submits that that the said modification made to open-source software by the petitioner would amount to patent and copyright laws of Seppon technology.
- In the instant case, the core contention lies in Mr. Maison's purported infringement of the respondents' patent and copyright. Contrary to the notion that open-source software is inherently devoid of proprietary rights, the respondents contend that their software, initially open source, underwent lawful modification and transformation.
- Subsequently, it was rightfully patented and copyrighted through the appropriate legal channels. Mr. Maison's actions, as alleged, involved unauthorized access and modification, thereby infringing upon the respondents' valid intellectual property rights.
- R.G. Anand v. M/s. Deluxe Films (1978) (Supreme Court of India):^18 This landmark case in Indian copyright law emphasized the protection of original literary and artistic works. The Supreme Court held that unauthorized adaptations and reproductions constitute copyright infringement. The decision underscores the importance of respecting the rights of copyright holders and adhering to the legal framework for copyright protection.
- Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt. Ltd. (2014) (Delhi High Court):^19 In this case, the Delhi High Court addressed issues related to trademark infringement and passing off. The court upheld the rights of the trademark holder and emphasized the importance of protecting intellectual property rights within the framework of trademark law.
- IBM Corp. v. Phoenix Technologies Ltd.(U.S. Court of Appeals for the Federal Circuit):^20 This case addressed copyright infringement issues related to software. The Federal Circuit upheld the rights of copyright holders by affirming that non-literal elements of software, including the structure, sequence, and organization, are protected by copyright. The decision highlighted the importance of respecting the copyright framework in the software industry.
- Microsoft Corp. v. i4i Ltd. Partnership, (U.S. Supreme Court):^21 This case highlighted the importance of maintaining the presumption of validity for issued patents. The Supreme Court emphasized that a high standard of proof (clear and convincing evidence) is required to overcome the presumption of validity and invalidate a patent. This decision reaffirmed the rights of patentees and the significance of adhering to the legal framework for patent protection. (^18) R.G. Anand v. M/s. Deluxe Films, 1978. (^19) Bhole Baba Milk Food Industries Ltd. v. Parul Food Specialities Pvt. Ltd., 2014. (^20) IBM Corp. v. Phoenix Technologies Ltd., 611 F.3d 1380 (Fed. Cir. 2010). (^21) Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91 (2011)
MEMORIAL FOR THE RESPONDENT II.Compatibility of Open Source Software with Patent Protection
- Licenses are a set of permissions or grants (they may include the right to use, modify or sell) given by the patentee to the licensee. Licenses may also be used to set conditions or obligations. For instance, in most proprietary software licenses the licensee is restrained from redistribution and in many cases, the licensee is also prohibited from reverse-engineering the software itself.
- The second facet of the argument hinges on the misconception that open source software is inherently incompatible with patent protection.
- It is imperative to clarify that the utilization of open-source licensing, such as the GNU General Public License (GPL), does not preclude an entity from seeking patent protection for innovations incorporated into the software.
- The very nature of open source acknowledges the compatibility of patent protection with its distribution.
- Additionally, Modifiers can also apply for a patent of their derivative work even though he/she has used the source code of the author. For the purpose of patenting the derivative work, the same must be an invention and it must be novel.
- Modifier has to add some increment or improvement on the previous source code in order to make it patentable otherwise it will be said to be devoid of any inventive step thus, non- patentable.
- In the instant case, the technology developed by the respondents was one of a kind and hence falls under the purview of what the act defines as “novel”.
- In the case of Apache 2.0, the “sub-licensing” is allowed, and also creating of derivative work is permissible, therefore, in such a case the modifier can modify the source code and create its own intellectual property.
- Oracle America, Inc. v. Google LLC, (N.D. Cal. 2010):^22 In this case, while primarily about copyright issues, there were discussions about the use of application programming interfaces (APIs) and software interoperability. The case indirectly touches on the concept of open standards and collaborative development, contributing to the idea that open-source software can coexist with intellectual property rights.
- Artifex Software, Inc. v. Hancom, Inc.(N.D. Cal. June 7, 2017):^23 While centered on (^22) Oracle America, Inc. v. Google LLC, 750 F. Supp. 2d 476 (N.D. Cal. 2010). (^23) Artifex Software, Inc. v. Hancom, Inc., 2017 U.S. Dist. LEXIS 88979 (N.D. Cal. June 7, 2017).
