I.A.No.13005/2010 under Order XXXIX Rules 1 and 2 and I.A.No.16457/2010 under Order XXXIX Rule 4 in CS(OS) No.1989/2010

I.A.No.13017/2010 under Order XXXIX Rules 1 and 2 and I.A.No.15387/2010 under Order XXXIX Rule 4 in CS(OS) No.1993/2010

1. Background Facts

1.1 The plaintiffs have instituted two suits for permanent injunction, delivery up, damages and rendition of accounts to restrain the defendants from manufacturing, distributing, selling, offering for sale, importing or in any other manner dealing with the infringing device/product violative of plaintiffs? registered Patent No. IN 240893 for the invention titled “Asymmetrical Beams for Spectrum Efficiency”. The plaintiffs are seeking interim injunction against the defendants in IA No.13005/2010 and IA No.13017/2010 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.

1.2 Vide ex parte interim order dated 4th October, 2010, this Court impleaded Reliance Communications and Tata Teleservices Limited as defendants No.2 and 3 and directed them to maintain status quo with respect to the installation of Bi-Sector Array Antenna by defendant No.1.

1.3 Defendant No.1 in CS(OS)No.1993/2010 preferred FAO(OS) No.660/2010 against the ex-parte order dated 4th October, 2010, which was disposed of by the Division Bench on 15th November, 2010 by remanding the matter back to this Court. Defendant No.1 in CS(OS)No.1989/2010 preferred FAO(OS)Nos.680-81/2010 which was dismissed as withdrawn on 1st December, 2010 in terms of the Division Bench order dated 15th November, 2010 in FAO(OS)No.660/2010.

1.4 Defendant No.1 in CS(OS) No.1989/2010 filed IA No.16457/2010 and defendant No.1 in CS(OS) No.1993/2010 filed IA No.15387/2010 under Order XXXIX Rule 4 of the Code of Civil Procedure for vacation of ex-parte interim order dated 4th October, 2010.

1.5 On 30th November, 2010, this Court suspended/vacated the ex-parte order dated 4th October, 2010 against which the plaintiffs preferred appeal bearing FAO No.697/2010 before the Division Bench.

1.6 Vide order dated 22nd December, 2010, the Division Bench set aside the order dated 30th November, 2010 and remanded the matter back to this Court.

1.7 Defendant No.1 in CS(OS) No.1993/2010 preferred a Special Leave Petition before the Supreme Court against the order of the Division Bench.

1.8 Vide order dated 7th January, 2011, the Special Leave Petition was disposed of with a direction to this Court to expeditiously take up the applications under Order XXXIX Rules 1, 2 and 4 of the Code of Civil Procedure.

1.9 Defendant No.1 in CS(OS) No.1993/2010 has filed the counter-claim for revocation of patent No. IN 240893 under Section 64(1)(d),(e),(f),(h),(i),(j),(k) and (m) of the Patents Act, 1970 along with the written statement.

2. Plaintiffs? Case

2.1 Plaintiff No.1 is a Company incorporated under the laws of the State of Ontario, Canada, and plaintiff No.2 is the wholly owned subsidiary of plaintiff No.1.

2.2 Plaintiff No.1 is the owner of the patent bearing No.IN 240893 titled as “Asymmetrical Beams for Spectrum Efficiency”, which is subject matter of both these suits. Plaintiff No.1 is manufacturer of “Bi-Sector Array Antenna”.

2.3 On 17th March, 2006, plaintiff No.1 filed an application for grant of patent with the Canadian Patent Office.

2.4 On 19th March, 2007, plaintiff No.1 filed the PCT (Patent Cooperation Treaty) application with the International Bureau of World Intellectual Property Organization (WIPO).

2.5 On 5th August, 2008, the plaintiffs submitted an application for grant of patent before the Indian Patent Office.

2.6 On 9th June, 2010, the Indian Patent Office granted the patent bearing No.IN 240893 to plaintiff No.1 for the invention titled “Asymmetrical Beams for Spectrum Efficiency”.

2.7 On 24th September, 2010, the plaintiffs instituted CS(OS) No.1989/2010 and CS(OS) No.1993/2010 before this Court.

2.8 The plaintiffs? invention relates to wireless communication systems, in particular, it relates to the improved use of available spectrum