CS(COMM) 977/2016 Page 1 of 10

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 4^th February, 2022

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CS(COMM) 977/2016, CC(COMM) 38/2017 & I.As. 10524/2018,

16746/2021

COMMUNICATION COMPONENTS ANTENNA INC...... Plaintiff

Through:

Mr. J. Sai Deepak, Mr. Sidhant Goel,

Mr. Mohit Goel, Mr. Aditya Goel, Mr.

Avinash Kumar Sharma and Mr.

Deepankar Mishra, Advocates.

versus

MOBI ANTENNA TECHNOLOGIES (SHENZHEN)

CO. LTD

..... Defendant

Through:

None.

CORAM:

HON'BLE MR. JUSTICE SANJEEV NARULA

JUDGMENT

[VIA VIDEO CONFERENCING]

SANJEEV NARULA, J. (Oral):

1.

In terms of the Order dated 12^th January, 2022, the Plaintiff has filed an

Affidavit of Service dated 28^th January, 2022, enclosing therewith proof of

service through e-mail, speed post as well courier tracking reports. The

courier consignment has not been accepted by the addressee. In view of the

above, Defendants stand served. Since there is no appearance on their behalf,

they are proceeded against ex-parte.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/000855

CS(COMM) 977/2016 Page 2 of 10

2.

Vide order dated 4^th February, 2016, the following issues were framed:

(iv) Relief.”

The afore-noted Issue No. (i) was taken up first and hearing on Issue No. (ii)

and (iii) was deferred. In the judgment dated 10^th August, 2021, the Court

while rendering findings on Issue No. (i), rejected all grounds urged by the

Defendants and upheld the patent. However, at the same time, the Court on

its own, proceeded to analyse whether the subject patent was liable to be

revoked under Sections 64(1)(h) and (k) of the Patents Act, 1970 [hereinafter,

“the Act”] in the context of Section 10 of the Act. On this aspect, findings

were rendered against Plaintiff and it was concluded that the subject patent

i.e.,‘IN240893’– was invalid and liable to be revoked under Section 64(1)(h)

and (k) of the said Act.

3. When the matter was carried out in appeal, the Division Bench vide

order dated 1^st December, 2021,¹ set-aside the Single Judge’s judgement and

made several observations as to how the Court should consider the grounds

of revocation. The Division Bench directed the Single Judge to frame a

specific issue, and accordingly, an additional issue was framed, which reads

as follows:

1 In RFA(OS)(COMM.) 06/2021 dated 1st December, 2021.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/000855

CS(COMM) 977/2016 Page 3 of 10

OPCC.”

The afore-noted issue was framed in the presence of the Defendant’s counsel.

However, the said counsel subsequently took discharge, and summons were

re-issued to the Defendant, and now, as noted above, despite service, there is

no appearance on their behalf.

ARGUMENTS ADVANCED

4. Mr. J. Sai Deepak, counsel for the Plaintiff, has been heard at length on

the afore-noted additional issue. Mr. Sai Deepak argues that the onus of proof

on the issue lies on the Defendants/ counter-claimants. The ground for

revocation of patent under Sections 64(1)(h) and (k) of the Act has to be

premised on facts. However, in absence of any foundation in pleadings or

evidence, the issue stands disproved against the Defendants. Mr. Sai Deepak

highlights that during the course of arguments before the Division Bench, the

Defendants had admitted that there were no pleadings on this issue in the

written statement or the counter-claim.Rather, in the appeal proceedings,

counsel for the Defendant, admitted the above fact. The counsel for Defendant

took a categorical stand that the issue of revocation under Sections 64(1)(h)

and (k) of the Act was purely legal, and further, made an unqualified statement

that no further pleadings would be made or evidence be led on the afore-noted

issue and the Single Judge would decid