4th4DME

TH National MootMOOTCOURT
Court Competition, 2021
DME NATIONAL COMPETITION, 2021 TEAM
TEAMCODE: TC 402
TC DME
CODE: DME 402

BEFORE THE HON’BLE HIGH COURT OF DELICA

ORIGINAL CIVIL JURISDICTION

I.A. NO. _____/2021

In CS(OS) ____/2021

Viashare Corporation………………………………….……………Applicant

versus

Vamazom……………………………………………………..……Respondent

Upon submission to the Hon’ble Justices in the Hon’ble High Court of Delica

-Memorial on behalf of the Respondent-

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TABLE OF CONTENTS

INDEX OF AUTHORITITES................................................................................................3

STATEMENT OF JURISDICTION......................................................................................7

ISSUES RAISED......................................................................................................................8

STATEMENT OF FACTS......................................................................................................9

SUMMARY OF ARGUMENTS...........................................................................................10

ARGUMENTS ADVANCED................................................................................................12

[ISSUE I] THAT THE SUIT FILED BY VIASHARE AGAINST VAMAZOM IS

NOT MAINTAINABLE....................................................................................................13

[ISSUE II] THAT PATENT GRANTED TO VIASHARE IS NOT VALID................13

[A] THAT VALIDITY OF A GRANTED PATENT CANNOT BE PRESUMED........13

[B] THAT THE SUBJECT OF VIASHARE’S PATENT IS NOT AN INVENTION.. .14

[C] THAT VIASHARE’S TECHNOLOGY IS AGAINST PUBLIC INTEREST.........15

[C.1] THAT VIASHARE’S TECHNOLOGY VIOLATED PRIVACY RIGHTS OF

USERS..........................................................................................................................16

[C.2] THAT VIASHARE’S TECHNOLOGY IS AGAINST TRIPS AGREEMENT AND

THE PATENTS ACT, 1970..........................................................................................16

[C.3] THAT VIASHARE’S TECHNOLOGY IS AGAINST THE SPIRIT OF

‘CONSUMER WELFARE’ UNDER COMPETION LAW...........................................17

[D] THAT THERE IS INSUFFCIENCY OF DISCLOSURE IN VIASHARE’S

PATENT SPECIFICATION............................................................................................18

[ISSUE III] THAT THE PATENT SHOLD BE GRANTED TO VAMAZOM’S

SOFTWARE.......................................................................................................................19

[A] THAT VAMAZOM’S SOFTWARE IS AN INVENTION......................................19

[B] THAT VAMAZOM’S SOFTWARE HAS INDUSTRIAL APPLICATION...........20

[C] THAT THERE IS SUFFICIENCY OF DISCLOSURE IN VAMAZOM’S

SOFTWARE....................................................................................................................21

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[D] THAT VAMAZOM IS NOT INFRINGING VIASHARE’S PATENT...................21

[ISSUE IV] THAT AN AD INTERIM INJUNCTION SHOULD NOT BE GRANTED

IN FAVOUR OF VIASHARE...........................................................................................21

[A] THAT A PRIMA FACIE CASE CANNOT BE ESTABLISHED IN FAVOUR OF

VIASHARE......................................................................................................................22

[B] THAT THE BALANCE OF CONVENIENCE LIES IN FAVOUR OF

VAMAZOM.....................................................................................................................24

[C] THAT VIASHARE WOULD NOT SUFFER AN IRREPARABLE LOSS IF THE

INJUNCTION IS NOT GRANTED................................................................................25

[ISSUE V] THAT VAMAZOM DOES NOT VIOLATE THE RIGHT TO PRIVACY

OF CITIZENS....................................................................................................................26

[A] THAT VAMAZOM MAINTAINS TRANSPARENCY IN ITS DEALINGS.........26

[B] VAMAZOM IS IN COMPLIANCE WITH THE CURRENT DATA PROTECTION

LAWS..............................................................................................................................28

PRAYER.................................................................................................................................30

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INDEX OF AUTHORITITES

 Cases

 3M Innovative Properties Company v Venus Safety and Health Pvt Ltd 10651 Of
2014..............................................................................................................................23
 American Cyanamid v Ethicon [1975] AC 396...........................................................22
 Antaryami Dalabehera vs Bishnu Charan Dalabehera: 2002 I OLR 531...................24
 Anwar Elahi vs Vinod Misra And Anr 1995 (35) DRJ 341..........................................24
 Bilcare v. M/S The Supreme Industries Ltd. 2007 (34) PTC 444 Del (India)..............14
 Biswanath Prasah Radhey Shyam v. Hindustan Metal Industries, 1982 AIR 1444 (Ind.
Sup. Ct.) (India)............................................................................................................14
 Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276..........................22
 Dimminaco ACC v. Controller of Patents, AID No. 1 of 2002, Calcutta High Court
(India)...........................................................................................................................20
 Edison and Swan Electric Light v. Holland, (1889) 6 RPC 243, 283..........................21
 F. Hoffmann-La Roche Ltd. v. Cipla Limited, 148 (2008) DLT 598 (Del. High Ct
2008) (India).................................................................................................................15
 Genetech v. Wellcome, (1989) Reports of Patent Cases (RPC) 147, 262....................20
 Graham v. John Deere Co, 383 USI, 165 at 684, 15 L.Ed. 2d 545.............................20
 Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad
(1995(5) SCC 545........................................................................................................23
 Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851)............................................20
 IPAB in Yahoo Inc. (Formerly Overture Service Inc.) v. Assistant Controller of
Patents and Designs & Rediff.com India Limited OA/22/2010/PT/CH dated 8th
December, 2011 (India),..............................................................................................15
 J. Mitra v. Asst. Controller of Patents (2008) 10 SCC 368 (India).............................13
 JUSTICE K.S. PUTTASWAMY VS. UNION OF INDIA (2017) 10 SCC.....................26
 Katz vs United States, 389 U.S. 347, 361 (1967..........................................................27
 Lynotype and Machinery LTOV Hopkins (1910) 27 RPC 109 at 113........................20
 M/S National Research Development Corporation v. M/s Delhi Cloth and General
Mills, AIR 1980 Del 132 (India)..................................................................................14

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 M/S UCB Farchim SA v. M/S Cipla LTD. & Ors. MANU/DE/0297/2010 (February 8,
2010) (India).................................................................................................................13
 Manika Thevar v. Star Plough Works, 1965 AIR Mad 327 (Mad. High Ct.) (India).. 14
 Marin Burn Ltd. v. R.N. Banerjee 1958-I L.L.J. 247...................................................23
 Novartis AG v. Union of India (UOI) and Ors.; Natco Pharma Ltd. v. UoI & Ors.;
M/S Cancer Patients Aid Association v. UoI & Ors. Civil Appeal No. 2706-2716 of
2013 (India)..................................................................................................................17
 NRDCI v. Delhi Cloth & Heneral Mills Co. Ltd. 1980 AIR Del 132 (Del. High Ct.)
(India)...........................................................................................................................14
 Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974)
40 Cut LT 336...............................................................................................................24
 Press Metal Corporation Limited v. Noshir Sorabji Pochkhanawalla (1982 PTC 259
(Bom)) (India)..............................................................................................................18
 Rothwell vs. King [1886 Vol.III. RPC page 379]........................................................23
 Sarkaria Jin Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979)
2SCC 511 at 517..........................................................................................................20

Books

 Katherine J. Stradburg, ‘The Research Exemption to Patent Infringement: The

Delicate Balance between Current and Future Technical Progress, Issues and
Practicesin the Digital Age’, Intellectual Property and Information Wealth, vol. 2, ed.
Peter K. Fu, Prager Perspectives, Prager Publishers, Westport, CT, US.....................18
 M.B. Rao & Manjula Guru, Patent Law in India 129-159 (Kluwer Law International
2010)............................................................................................................................16
 Mohamed Omar Gad, Intellectual Property and International Trade, The TRIPS
Agreement 401-462 (Abdulqawi Ahmed Yusuf and Carlos M. Correa eds, Kluwer
Law International 2016)...............................................................................................13
 Yogesh Pai, Patent Law Injunctions 179-206 (Rafal Sikorski ed Kluwer Law
International 2018).......................................................................................................12

Journals

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 Brian Mund, Social Media Searches and the Reasonable Expectation of Privacy, 19
YALE J.L. & TECH. 238 (2017).................................................................................26
 Corridors of Knowledge for Peace and Development, Interface between Competition
Policy and Intellectual Property Rights, Sustainable Development Policy Institute
(2020)...........................................................................................................................15
 Eashan Ghosh, Whither the ‘Six-Year Rule’? Reconstructing India’s Law on the
Presumption of Patent Validity, 10(2) JIPLP 109 (2015)............................................11
 Hovenkamp, Herbert J., "Distributive Justice and Consumer Welfare in Antitrust"
(2013). Faculty Scholarship at Penn Law. 1868..........................................................15
 Linda L. Lee, Trials and TRIPS-ulations: Indian Patent Law and Novartis AG v.
Union of India, 23 Berkeley Tech. L.J, 281-313 (2008)..............................................14
 Roshni Chakraborty, Technology Across Borders: Solutions provided by a new digital
landscape, 39 HIR, 18-21 (2018).................................................................................14
 Shiv Shankar Singh, Privacy and Data Protection in India: A critical Assessment, 53
JILI 663, 671-77 (2011)...............................................................................................14
 Singh & Associates; “Indian Legal Impetus” September 2019, Vol. V, Issue IX.......13
 Sudip Chaudhari, The Larger Implications of the Novartis-Glivec Judgment, 48 EPW,
10-12 (2013).................................................................................................................15

Statutes and Rules

 Guidelines for examining Computer Related Inventions (CRIs), Office of the

Controller General of Patents, Designs and Trademarks 2017....................................16
 Information Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules, 2011..................................................................27
 The Code of Civil Procedure, 1908..............................................................................21
 The Patent Act, 1970....................................................................................................20

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STATEMENT OF JURISDICTION

The original civil jurisdiction of Hon’ble High Court of Delica is invoked and has been
approached under Section 104 of the Patents Act, 1970. The application for interim
injunction is being heard by the court under Section 94 read with Order 39 Rule 1 & Rule 2
of the Code of Civil Procedure, 1908.

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ISSUES RAISED

PRELIMINARY

 WHETHER THE SUIT FILED BY VIASHARE AGAINST VAMAZOM IS

MAINTAINABLE.

MERITS

 WHETHER PATENT GRANTED TO VIASHARE IS VALID.

 WHETHER PATENT SHOULD BE GRANTED TO VAMAZOM’S SOFTWARE.

 WHETHER AN AD INTERIM INJUNCTION SHOULD BE GRANTED IN

FAVOUR OF VIASHARE.

 WHETHER VAMAZOM’S SOFTWARE VIOLATE RIGHTS TO PRIVACY OF

CITIZENS

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STATEMENT OF FACTS

Indiva, a country with a population of hundred million people is home to a software company
named Viashare, based in Delica (The capital of indiva). There is a lot of scope for
progressive reforms in the sphere of Cyber Laws and IPR Laws in Indiva.

VIASHARE: On 5th January, 2020, Viashare was granted a patent protection on its
technology for managing internet affiliate programs. Similar affiliate programs can be found
throughout the Internet in the form of buttons that direct users to online stores selling
anything from clothes, cosmetics, medicines, software, or other products. The factor which
distinguishes Viashare from these programs is that it possesses the right to block anyone from
using such an arrangement of links between sites with commission payments.

THE CYBERATTACK: On 5th January, 2021, due to a massive cyberattack by an

anonymous source, the user data stored by Viashare was leaked and most of it was found
active on the dark web. This resulted in users getting fraudulent emails and calls from
unknown sources. Naturally, the users faced mental harassment. The cyber cell of Indiva
made attempts to remove this data and provide protection to the citizens.

VAMAZOM: On 5th February, 2021, Vamazom, a multinational company, dealing with

B2C retail through its website Vamazom.com, published a patent application similar to
Viashare’s granted patent. But, additionally had structural/hardware limitations over the
patent for privacy enhancements. Consequently, Viashare filed a pre-grant opposition in the
patent office against Vamazom’s application.

THE DISPUTE: In addition to this, Viashare has approached the Hon’ble High Court of
Delica, for an ex parte interim injunction against Vazamom’s usage of software in question.
Meanwhile, Unity legal foundation, an NGO which works for the protection of consumers’
rights and privacy, upon learning about this suit filed by Viashare against Vamazom, has
written a letter to the Chief Justice of the High Court of Delica expressing their concern about
the recent breach of Right to Privacy of the citizens of Indiva and seeking action of the
Hon’ble High Court against the grant of patent to these types of software.

The matter lies in front of the Hon’ble High Court of Delica.

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SUMMARY OF ARGUMENTS

[ISSUE I] THAT THE SUIT FILED BY VIASHARE AGAINST VAMAZOM IS NOT

MAINTAINABLE.

It is humbly submitted that the suit filed by Viashare against Vamazom is not maintainable as
the respondent has already filed a Pre-grant opposition proceeding against the applicant prior
to approaching the court for injunction, the whole purpose of which is to avoid litigation. In
addition, in case pre-grant opposition of the applicant is rejected, the remedy available to
them against applicant would be to file for post-grant opposition. This would lead to
multiplicity of procedures which involve addressal of same issues and would burden the legal
system unnecessarily. Therefore, the suit should not be maintainable.

[ISSUE II] THAT PATENT GRANTED TO VIASHARE IS NOT VALID.

It is humbly submitted that the patent granted to Viashare is not valid. Validity of patents
cannot be presumed from grant of the same and a credible challenge can be brought against
the same. In view of this, it is submitted that Viashare’s patented technology is not an
invention as it does not include any novelty nor any inventive step. Viashare’s technology is
against public interest as well, since it has violated privacy of users. There is also
insufficiency of disclosure in Viashare’s patent. Therefore, it is not valid.

[ISSUE III] THAT PATENT SHOULD BE GRANTED TO VAMAZOM’S

SOFTWARE.

It is humbly submitted that Vamazom’s software should be granted patent since Vamazom’s
software is an invention as it is novel and involves inventive step considering technical
advancement in terms of privacy enhancements. In addition, the software has industrial
application. There is sufficiency of disclosure in Vamazom’s patent specification. Lastly, it
does not infringe upon Viashare’s patent since both technologies are different.

[ISSUE IV] THAT AN AD INTERIM INJUNCTION SHOULD NOT BE GRANTED

IN FAVOUR OF VIASHARE.

It is humbly submitted before the Hon'ble High Court that an ad interim injunction should not
be granted in favour of Viashare for threefold reasons. Firstly, the prima facie case cannot be

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established in favour of Viashare. Secondly, the balance of convenience lies in favour of

Vamazom. Lastly, Viashare would not suffer an irreparable loss if the injunction is not
granted.

[ISSUE V] THAT THAT VAMAZOM DOES NOT VIOLATE THE RIGHT TO

PRIVACY OF CITIZENS

It humbly submitted before the Hon'ble High Court that Vamazom does not violate the right
to privacy of the citizens of Indiva for two-fold reasons. Firstly, Vamazom maintains
transparency in its dealings and thereby follows a standard privacy policy. Secondly,
Vamazom is in compliance with all the current data protection laws of Indiva. Thus, it can be
established that Vamazom does not violate the right to privacy of the citizens of Indiva.

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ARGUMENTS ADVANCED

[ISSUE I] THAT THE SUIT FILED BY VIASHARE AGAINST VAMAZOM IS NOT

MAINTAINABLE.
(¶1) It is humbly submitted that the suit filed by Viashare against Vamazom should not be
maintainable since Pre-grant opposition has already been filed by Viashare Corporation
against Vamazom’s Patent application.1 The rationale behind this provision of pre-grant
opposition, as provided under the Patents Act, 19702 is to resolve issues in the initial stages of
the patent application itself and prevent matters from going into litigation so as to save time
and money and approaching courts before the decision of the pre-grant opposition is
essentially defying the purpose of the provision of pre-grant opposition.

(¶2) It is humbly submitted that in the event of rejection of pre-grant opposition, the only
remedy available to interested party is to file for post-grant opposition either in tandem with
Section 25(2) of The Patents Act 1970 or Section 64 of the Act 3. If Viashare’s pre-grant
opposition is rejected and patent is granted to Vamazom, it is reasonable to assume that there
may exist a possibility where, the former may file for post-grant opposition. This would lead
to multiple procedures which essentially involve similar subject-matter, issues and questions
and would add to the already overburdened legal system. Therefore, on these grounds, the
present suit should not be held maintainable.

[ISSUE II] THAT PATENT GRANTED TO VIASHARE IS NOT VALID.

(¶3) It is humbly submitted that the patent protection granted to Viashare as on January 5,
2021 for its technology for managing Internet Affiliate Programs 4 is not valid. This can be
substantiated by a four-fold argument. Firstly, validity of a granted patent cannot be
presumed [A]. Secondly, the subject of Viashare’s patent is not an invention [B]. Thirdly,
Viashare’s technology is against public interest [C]. Fourthly, there is insufficiency of
disclosure in Viashare’s patent specification [D].

1
Moot Proposition, Pg. no. 2, Para no. 5.
2
Section 25, The Patents Act, 1970 provides for opposition to the patent (where application for the same has
been filed but the patent itself is not granted).
3
M/S UCB Farchim SA v. M/S Cipla LTD. & Ors. MANU/DE/0297/2010 (February 8, 2010) (India). J. Mitra v.
Asst. Controller of Patents (2008) 10 SCC 368 (India).
4
Moot Proposition, Pg. no. 1 Para no. 2.

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[A] THAT VALIDITY OF A GRANTED PATENT CANNOT BE PRESUMED.

(¶4) It is humbly submitted that grant of patent confers certain rights upon the patentee,
however, neither the grant nor rights granted therein are absolute in nature since, there is no
presumption of validity in the statute i.e. The Patents Act, 1970 5 and, in addition, judicial
decisions and interpretations affirm this position by denying any presumption of validity of a
patent. The Supreme Court has held, while interpreting or reiterating Section 13(4) of The
Patents Act, 19706, that grant of patent by a Controller does not guarantee the validity of the
patent.7

(¶5) It is humbly submitted that the courts use the ‘six-year’ rule or criteria 8 It is a ‘rule of
practice’ that, a patent, in order to be presumed to be valid must fulfil two considerations-
firstly, the patentee should have unchallenged possession with respect to enjoyment of the
patent and rights therein and secondly the same should have been done for a period of six
years at least9. The patent of Viashare is merely a year old and therefore, presumption of
validity does not lie.10

[B] THAT THE SUBJECT OF VIASHARE’S PATENT IS NOT AN INVENTION.

(¶6) It is humbly submitted that invention means a new product or process involving
inventive step and the capability of application in the industry. 11 The subject of Viashare’s
patent is not an invention because it does not satisfy the required criteria as it lacks novelty
and there is no inventive step.

(¶7) It is humbly submitted that the first and foremost criteria to determine patentability is
novelty. An invention must be characterised by new, unknown and unused information to be
called an invention in the first place. 12 Novelty is found lacking when these factors are not
5
Eashan Ghosh, Whither the ‘Six-Year Rule’? Reconstructing India’s Law on the Presumption of Patent
Validity, 10(2) JIPLP 109 (2015).
6
Section 13(4) of The Patents Act, 1970 states that “The examination and investigations required under section
12 and this section shall not be deemed in any way to warrant the validity of any patent, and no liability shall be
incurred by the Central Government or any officer thereof by reason of, or in connection with, any such
examination or investigation or any report or other proceedings consequent thereon.”
7
Biswanath Prasah Radhey Shyam v. Hindustan Metal Industries, 1982 AIR 1444 (Ind. Sup. Ct.) (India).
8
Manika Thevar v. Star Plough Works, 1965 AIR Mad 327 (Mad. High Ct.) (India). NRDCI v. Delhi Cloth &
Heneral Mills Co. Ltd. 1980 AIR Del 132 (Del. High Ct.) (India). Bilcare v. M/S The Supreme Industries Ltd.
2007 (34) PTC 444 Del (India). M/S National Research Development Corporation v. M/s Delhi Cloth and
General Mills, AIR 1980 Del 132 (India).
9
Yogesh Pai, Patent Law Injunctions 179-206 (Rafal Sikorski ed Kluwer Law International 2018).
10
Moot Proposition, Pg. no. 1, Para no. 2 (Patent Granted on January 5, 2021) and Para no. 4, 6 and 8 suggest
institution of suit roughly a year post the grant of Viashare’s patent.
11
Sections 2(1) (j), 2(1) (ja), 2(1)(l), The Patents Act, 1970 (India).
12
Sections 2(1)(l) and 2(1)(j), The Patents Act, 1970 (India).

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met. Affiliate programs have been in use for quite a while as similar programs can be found
throughout the internet and hundreds of thousands of sites have added “affiliate links” for
generation of commission upon clicking by user on such sites and buying something. 13 This
shows lack of novelty on Viashare’s part.

(¶8) It is humbly submitted that "inventive step means a feature of an invention that involves
technical advance as compared to the existing knowledge or having economic significance or
both and that makes the invention not obvious to a person skilled in the art.” 14 Viashare’s
software is placed on merchant-operated websites and users would click on banner ad on
referring website, purchase something which would generate commission. Such arrangement
does not involve any technical advance comparing the same to existing knowledge of affiliate
links15. Adding to this, even if there are known elements to innovation, the result has to be
something new16 which is not the case presently.

[C] THAT VIASHARE’S TECHNOLOGY IS AGAINST PUBLIC INTEREST.

(¶9) It is humbly submitted that patent regimes cannot be segregated and be kept in isolation
from public policies, social values, morality and fundamental rights.17 Grant of Patents are
essentially ‘rewards’ that monopolise inventions and in return promotion of innovation is
expected and, at the same time, it is imperative that the various patent regimes should not
erode any social factors.18 There has to be, in other words, “equilibrium between rewarding
innovation and safeguarding public policy.” 19

(¶10) It is humbly submitted that Viashare’s technology is not patentable with respect to the
aforementioned notions as firstly, it violated privacy rights of users [C.1]; secondly, it is
against TRIPS Agreement and The Patents Act 1970 [C.2] and thirdly, it is against the spirit
of ‘consumer welfare’ under Competition Law [C.3].

13
Moot Proposition, Pg. no. 1, Para no.3.
14
Section 2(1) (ja), The Patents Act, 1970 (India).
15
Supra note 4.
16
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, AIR 1982 SC 1444 (India), IPAB in Yahoo
Inc. (Formerly Overture Service Inc.) v. Assistant Controller of Patents and Designs & Rediff.com India
Limited OA/22/2010/PT/CH dated 8th December, 2011 (India), F. Hoffmann-La Roche Ltd. v. Cipla Limited,
148 (2008) DLT 598 (Del. High Ct 2008) (India).
17
Singh & Associates; “Indian Legal Impetus” September 2019, Vol. V, Issue IX.
18
Supra note 9.
19
Mohamed Omar Gad, Intellectual Property and International Trade, The TRIPS Agreement 401-462
(Abdulqawi Ahmed Yusuf and Carlos M. Correa eds, Kluwer Law International 2016).

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[C.1] THAT VIASHARE’S TECHNOLOGY VIOLATED PRIVACY RIGHTS OF

USERS.
(¶11) It is humbly submitted that Viashare’s technology which manages Internet Affiliate
Programs, begins tracking users’ online behaviour at the very instance they click on a banner
advertisement on a referring website and continues till competition of transaction on
merchant websites.20 There was a leak in user database on consumer behaviour on (5 January
2021), stored by Viashare due to which personal details of people got leaked 21 and as a
consequence, people were subjected to fraudulent emails22 and there was activation of chunk
of user data on the dark web 23 all of which, despite Indiva’s Cyber Cell’s efforts caused the
users, mental harassment.24 This clearly shows that Viashare’s technology has failed to
protect confidentiality of user data and has to that extent, vitiated their (the users’) privacy.

(¶12) It is humbly submitted that right to privacy especially in terms of data protection 25 were
violated by Viashare as the technology employed to manage Internet Affiliate Programs by
Viashare was not secure enough to retain data and secure and safeguard against cyberattacks
which thereby personal information of users was leaked especially on dark web which hosts
criminal activity like underground/black markets where unlawful goods (fake IDs, drugs,
weapons etc) are purchased and sold. Even terrorist services activities, human trafficking and
other heinous crimes are hosted on the dark web. 26 In addition, due to leaks users can easily
fall prey to cybercrimes like identity theft etc. Not only privacy rights are violated, but also,
threat of violation of other rights hangs over users.

[C.2] THAT VIASHARE’S TECHNOLOGY IS AGAINST TRIPS AGREEMENT AND

THE PATENTS ACT 1970.
(¶13) It is humbly submitted that under Indian Patent Law, modifications were made in 2005
whereby intellectual property laws as a whole were conformed with Trade-Related Aspects of
Intellectual Property Rights (TRIPS), the World Trade Organization’s (WTO) minimum

20
Moot Proposition, Pg. no. 1, Para no. 2.
21
Moot Proposition, Pg. no. 2, Para no. 6.
22
Supra note 13.
23
Moot Proposition, Pg. no. 2, Para no. 7.
24
Supra note 14.
25
Shiv Shankar Singh, Privacy and Data Protection in India: A critical Assessment, 53 JILI 663, 671-77 (2011),
accessed at: https://www.jstor.org/stable/45148583. – Certain provisions of IT Act “monitor violation of
privacy, breach of confidentiality and privacy, and disclosure of information in breach of lawful contract.”
26
Roshni Chakraborty, Technology Across Borders: Solutions provided by a new digital landscape, 39 HIR, 18-
21 (2018), accessed at: https://www.jstor.org/stable/10.2307/26617373.

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standards for protection of intellectual property.27 It is a general principle that States have
rights to protect the interest of public which applies to the domain of patent law as well.
TRIPS allows exceptions to patentability based on ‘ordre public’ which means matters that
pose threats to the society and morality can be excluded from patentability. 28 Indian statute
for patents i.e. The Patents Act 1970 also has a similar provision under Section 3(b) of the
Act29 (Chapter II – Inventions not Patentable).

(¶14) It is humbly submitted that importance of public order and morality in Patent regimes
has also been affirmed and upheld by the Hon’ble Supreme Court in the Novartis-Glivec
Judgement30 and stating, that patenting should be linked with net benefits to society and
conditions of the country are important considerations in determination of patent regimes. 31
Granted patents should act as instruments that promote public interest and must focus on
important sectors for socio-economic and technological development of the country. 32 As
stated above, Viashare’s technology has caused major issues to the public and it goes against
the ordre public requirement under both TRIPS Agreement as well as Section 3(b) of the
Patents Act, 1970.

[C.3] THAT VIASHARE’S TECHNOLOGY IS AGAINST THE SPIRIT OF

‘CONSUMER WELFARE’ UNDER COMPETION LAW.

(¶15) It is humbly submitted that patent law and competition law are complimentary facets
vis-à-vis both innovation as well as consumer welfare. 33 Monopolistic rights provided by
grant of patents to patentees should be checked by anti-competitive laws to ensure welfare.
The notion of consumer welfare is reflected and envisaged in the preamble of the

27
Linda L. Lee, Trials and TRIPS-ulations: Indian Patent Law and Novartis AG v. Union of India, 23 Berkeley
Tech. L.J, 281-313 (2008), accessed at: https://www.jstor.org/stable/24118301.
28
Article 27.1 of TRIPS Agreement (Patentable Subject Matter)- “Members may exclude from patentability
inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect
ordre public or morality, including to protect human, animal or plant life or health or to avoid serious
prejudice to the environment, provided that such exclusion is not made merely because the exploitation is
prohibited by their law”
29
“An invention the primary or intended use or commercial exploitation of which could be contrary public order
or morality or which causes serious prejudice to human, animal or plant life or health or to the environment.”
30
Novartis AG v. Union of India (UOI) and Ors.; Natco Pharma Ltd. v. UoI & Ors.; M/S Cancer Patients Aid
Association v. UoI & Ors. Civil Appeal No. 2706-2716 of 2013 (India).
31
Sudip Chaudhari, The Larger Implications of the Novartis-Glivec Judgment, 48 EPW, 10-12 (2013) .
Accessed at: https://www.jstor.org/stable/23527177.
32
Section 83(d), The Patents Act, 1970 (India).
33
Corridors of Knowledge for Peace and Development, Interface between Competition Policy and Intellectual
Property Rights, Sustainable Development Policy Institute (2020). Accessed at:
http://www.jstor.com/stable/resrep24374.18.

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Competition Act 2002 which states that it is an act aimed at protecting the interests of
consumers among other objectives. Consumer harm trumps any gains. 34 Viashare’s
technology has caused major problems to users and therefore is against the spirit of consumer
welfare under competition law.

[D] THAT THERE IS INSUFFCIENCY OF DISCLOSURE IN VIASHARE’S

PATENT SPECIFICATION.
(¶16) It is humbly submitted that disclosure of invention fully and particularly in terms of
description and methodology and of claims to patent rights, is crucial so as to enable a person
with average skill in the art to perform and practice claimed invention without the need to
invent something.35 It is important specify “what” is the invention and “how” to perform it.
The nature and limitation of claims has to be stated clearly and distinctly and usage of
obscure and/or ambiguous language must be avoided.36

(¶17) It is humbly submitted that Viashare has been granted patent for “technology” which
manages internet affiliate programs wherein “a software” is placed on merchant
websites.37What exactly is the technology and what it does, how the software is attached to
websites, what exactly is the software, are not specified, which will not enable a person with
average skill to practise the claimed invention. In addition, “depending how broadly it is
interpreted”, Viashare has the “right to block other websites with similar affiliate
arrangements.”38Claims define the scope of monopoly claims so as to assess when boundaries
are trespassed39 but Viashare’s claims are ambiguous at best. This shows insufficiency of
disclosure on Viashare’s part.

(¶18) It is humbly submitted that in patent inventions, where computer programs are
concerned, “Means plus function” method is used in patent specification. A specification
should not solely support performance of function by computer program but also, there
should be physical constructional features or structural features that support performance of

34
Hovenkamp, Herbert J., "Distributive Justice and Consumer Welfare in Antitrust" (2013). Faculty Scholarship
at Penn Law. 1868. Accessed at: https://scholarship.law.upenn.edu/faculty_scholarship/1868.
35
Section 10 of The Patents Act, 1970 provides for Patent Specification. Section 64(1)(h) of the Act provides
grounds of revocation if the complete specification fails to describe the invention and the method by which it is
performed in a fair and sufficient manner such that the same are not sufficiently enabling by themselves.
36
Press Metal Corporation Limited v. Noshir Sorabji Pochkhanawalla (1982 PTC 259 (Bom)) (India).
37
Moot Proposition, Pg. No. 1, Para no. 2.
38
Moot Proposition, Pg. No. 1, Para no. 3.
39
M.B. Rao & Manjula Guru, Patent Law in India 129-159 (Kluwer Law International 2010).

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functions by the computer program.40 Without this, a computer program would only be a
software and would come under the ambit of non-patentable inventions within the meaning of
Section 3(k) of The Patents Act, 197041. In case of computer programs, substance of the
invention is to be looked at closely rather than the particular form in which it is claimed in
order to avoid underlying substance of claims due to their wording. The crux of the claim
must not lie in the software or the computer program in order to be patentable, however, this
is not the case presently since, Viashare’s patent is based on their “technology” and
“software” as mentioned above and no physical/structural/hardware features are described.42
It therefore is non-patentable under the relevant provision of the act.

[ISSUE III] THAT THE PATENT SHOULD BE GRANTED TO VAMAZOM’S

SOFTWARE.
(¶19) It is humbly submitted that the patent should be granted to Vamazom’s software. This
would be substantiated by a two-fold argument. Firstly, that Vamazom’s software is an
invention [A]; Secondly, that Vamazom’s software has industrial application [B]; Thirdly,
that there is sufficiency of disclosure in Vamazom’s software [C] and Fourthly, Vamazom is
not infringing Viashare’s patent [D].

[A] THAT VAMAZOM’S SOFTWARE IS AN INVENTION.

(¶20) It is humbly submitted that for grant of patents, the invention claimed should be novel
and must involve inventive step.43

(¶21) It is humbly submitted that the term ‘invention’ has been defined under section 2(j) of
Patents Act, 1970, which states that an invention is a new product or process which involves
an inventive step and is capable of industrial application. The term ‘Inventive Step’ is defined
under Section 2(ja) of the Patents Act, 1970. It states that any technical advancement should
not be obvious to any person skilled in the art. In the present case, Vamazom’s software is a
new or novel invention since it involves additional structural/hardware limitation for privacy
enhancement which requires users to sign in with user credentials and details to Vamazom’s

40
Guidelines for examining Computer Related Inventions (CRIs), Office of the Controller General of Patents,
Designs and Trademarks 2017. Accessed at:
http://ipindia.gov.in/writereaddata/Portal/IPOGuidelinesManuals/1_86_1_Revised__Guidelines_for_Examinatio
n_of_Computer-related_Inventions_CRI__.pdf.
41
Non-patentable inventions, Section 3(k) of The Patents Act 1970, “a mathematical or business method or a
computer program per se or algorithms”
42
Moot Proposition, Pg. no. 1, Para no.s 2 and 3.
43
Supra note 40.

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website is required for affiliate link to be operable. 44 This is completely new when compared
to the existing knowledge related to the same (i.e., software for which Viashare has been
given patent).45There is inventive step as well as novelty46 as Vamazom’s software is a result
of technological progress and the intent of patent law is to promote research and
technological and industrial development47. There is always a requirement of skill and
ingenuity48 in any invention which is present in Vamazom’s software. Advancement made by
Vamazom is in the best interest of the public. ‘Non-obviousness’ of the subject matter sought
to be patented is also an essential criterion.49 Privacy enhancements added by Vamazom were
not present previously known or present and therefore, the condition of non-obviousness is
fulfilled.

[B] THAT VAMAZOM’S SOFTWARE HAS INDUSTRIAL APPLICATION.

(¶22) It is humbly submitted that Vamazom’s software has industrial application 50 as it
enables commission generation, the process of which is as follows- a user logs into
Vamazom’s website to make affiliate link operable. Thereafter, referring website receive
commission up to 15 percent of the sale price for books that are sold this way and another 5
percent on anything else purchased through the affiliate link.

(¶23) According to Sec 2(1) (ac) of Patent Act, 1970 which defines the term Industrial
Application, an invention means should be capable of being made or used in an industry. This
implies that an invention should not merely be conceptual or theoretical in nature and must
have some practical application. Vamazom’s technology has practical application since it
enables commission generation in a secure space in terms of privacy. Vamazom’s technology
is workable and is useful as it facilitates commission generation. A concrete benefit is
therefore derivable from Vamazom’s technology.

[C] THAT THERE IS SUFFICIENCY OF DISCLOSURE IN VAMAZOM’S

SOFTWARE.
(¶24) It is also humbly submitted that the condition for sufficiency of disclosure in relation to
the invention is also completed as the procedure for working of the Vamazon’s software and
44
Moot Proposition, Page 2, Para 4
45
Dimminaco ACC v. Controller of Patents, AID No. 1 of 2002, Calcutta High Court (India).
46
Genetech v. Wellcome, (1989) Reports of Patent Cases (RPC) 147, 262
47
Sarkaria Jin Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2SCC 511 at 517
48
Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851)
49
Graham v. John Deere Co, 383 USI, 165 at 684, 15 L.Ed. 2d 545
50
Linotype and Machinery Ltd v. Hopkins (1910) 27 RPC 109 at 113.

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the technological advancements has been clearly mentioned in the patent application 51. It has
been made very clear in the application that how the software will work i.e., in order for the
affiliate link to be operable, one has to sign in with login credentials and thereafter,
commission is generated (up to 15 percent of the sale price for books that are sold this way
and another 5 percent on anything else purchased through the affiliate link). In addition, since
there are structural/hardware limitation over the patent for privacy enhancements Vamazom’s
software is not a computer program per se.52 Patentability of inventions relating to computer
programs that may include or incorporate other things “ancillary thereto” or “developed
thereon” is possible.

[D] THAT VAMAZOM IS NOT INFRINGING VIASHARE’S PATENT.

(¶25) It is humbly submitted that in the present case, Vamazom has not infringed Viashare’s
patent. It is evident from the facts of the case that both the softwares do not have the same
subject-matter. Additional mechanisms for privacy enhancements have been added by
Vamazom. Vamazom’s software is different from Viashare’s technology. Therefore, since
the subject matter of Vamazon is different from that of Viashare, there is no infringement.53

[ISSUE IV] THAT AN AD INTERIM INJUNCTION SHOULD NOT BE GRANTED

IN FAVOUR OF VIASHARE.
(¶26) It is humbly submitted before the hon’ble court that an ad interim injunction should not
be granted in favour of Viashare. This can be substantiated by a three-fold argument. Firstly,
a prima facie case cannot be established in favour of Viashare [A]. Secondly, the balance of
convenience lies in favour of Vamazom [B]. Thirdly, Viashare would not suffer an
irreparable loss if the injunction is not granted [C].

[A] THAT A PRIMA FACIE CASE CANNOT BE ESTABLISHED IN FAVOUR OF

VIASHARE.
(¶27) It is humbly submitted before the hon’ble court that a prima facie case cannot be
established in favour of Viashare. It is a well settled rule that for grant of a temporary
injunction, three factors have to be satisfied, namely – (i) There must be a prima facie case in
favour of the applicant, (ii) the balance of convenience must be in favour of the plantiff, (iii)
There must occur an irreparable loss to the applicant if the injunction is not granted. The
51
Moot Proposition, Page no. 2, Para no. 4
52
Section 3(k), The Patents Act, 1970 (India).
53
Edison and Swan Electric Light v. Holland, (1889) 6 RPC 243, 283

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principles governing the grant of injunctions are consequential to a case law, particularly
American Cyanamid vs Ethicon Ltd54, a case which Indian courts pledge allegiance to even
today.

The Supreme Court55 has explained the scope of aforementioned material circumstances, in
the following manner: “The phrases `prima facie case’, `balance of convenience’ and `
irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to
meet myriad situations presented by man’s ingenuity in given facts and circumstances, but
always is hedged with sound exercise of judicial discretion to meet the ends of justice. The
facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts
prima facie case and balance of convenience.”

(¶28) No injunction could be granted under O. 39 of the Code 56 unless the applicants
establish that they had a prima facie case. The expression "prima facie" means at the first
sight or on the first appearance or on the face of it, or so far as it can be judged from the first
disclosure. Prima facie case means that evidence brought on record would reasonably allow
the conclusion that the applicant seeks. The Supreme Court 57 has held that “A prima facie
case does not mean a case proved to the hilt but a case which can be said to be established if
the evidence which is led in support of the same were believed. While determining whether a
prima facie case had been made out, the relevant consideration is whether on the evidence led
it was possible to arrive at the conclusion in question and as to whether that was the only
conclusion which could be arrived at on that evidence.” In another case 58, it was held that
"Prima facie case" means that the Court should be satisfied that there is a serious question to
be tried at the hearing, and there is a probability of Applicant obtaining the relief at the
conclusion of the trial on the basis of the material placed before the Court.

(¶29) In the instant case, a prima facie case does not exist in favour of the applicant because
the patent granted to Viashare is not valid. This follows from the contention that a patent
cannot be presumed to be valid unless it is more than six years old 59.  This rule has its roots in
British case Rothwell vs. King.60 This rule has been invariably followed by the Indian Courts
54
American Cyanamid v Ethicon [1975] AC 396.
55
Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276.
56
Order 39, Rules 1 to 5, The Code of Civil Procedure, 1908 (India).
57
Marin Burn Ltd. v. R.N. Banerjee 1958-I L.L.J. 247.
58
Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad (1995(5) SCC 545.
59
3M Innovative Properties Company v. Venus Safety and Health Pvt Ltd 10651 Of 2014.
60
Rothwell vs. King [1886 Vol.III. RPC page 379].

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as well. In Manicka Thevar v. Star Plough works61, Madras High Court held that
“an interim injunction will not be granted if the patent which has been obtained by
the applicant is a recent one and there is a serious controversy about the validity of
grant of the patent itself. In other words, Courts will not grant an order of interim
injunction if the respondent disputes validity of the grant”. The court also pointed out
that “any patent which is less than six years old is regarded as a recent one”.

(¶30) Further, The Supreme Court of India 62, categorically rejected the argument that there is
a presumption of validity of a patent in the case of Biswanath Prasad Radhey Shyam v.
Hindustan Metal Industries63 and ruled that – “It is noteworthy that the grant and sealing of
the patent, or the decision rendered by the controller in the case of opposition, does not
guarantee the validity of the patent, which can be challenged before the High Court in
revocation or infringement proceedings. It is pertinent to note that this position, viz., the
validity of the patent is not guaranteed by the grant is now expressly provided in Section
13(4)64 of the Patents Act, 1970.”

Thus, it can be concluded that the patent granted to Viashare is not a valid one and hence, a
prima facie case cannot be established in favour of Viashare.

[B] THAT THE BALANCE OF CONVENIENCE LIES IN FAVOUR OF VAMAZOM.

(¶31) It is humbly submitted before the hon’ble court that the balance on convenience in the
instant case lies in the favour of Vamazom. 'Balance of convenience' means the comparative
mischief or inconvenience to the parties65. The inconvenience to the applicant if temporary
injunction is refused would be balanced and compared with that to the respondent if it is
granted. If the scale of inconvenience leans to the side of the applicant, then a temporary
injunction should be granted.

(¶32) Under this principle, the inconvenience to the applicant if temporary Injunction is
refused is balanced and compared with that of the opposite party, if it is granted. 66 In other

61
Manicka Thevar v. Star Plough Works (1965) [AIR 1965 Madras 627].
62
The laws of Indiva are para materia to the laws of India.
63
Biswanath Prasad Radhey Shyam v..Hindustan Metal Industries [AIR 1982 SC 1444].
64
The examination and investigations required under section 12 and this section shall not be deemed in any way
to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer
thereof by reason of, or in connection with, any such examination or investigation or any report or other
proceedings consequent thereon.
65
Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336.
66
Antaryami Dalabehera v. Bishnu Charan Dalabehera: 2002 I OLR 531.

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words, while applying this principle, the Court has to weigh the amount of substantial
mischief that is likely to be done to the applicant if the injunction is refused and compare it
with that which is likely to be caused to the other side if the injunction is granted.67

(¶33) Moreover, the landmark case of Roche v. Cipla68 added an interesting dimension to the
principle which will be applicable in the present case. In this case, the judge creatively read in
“public interest” into the “balance of convenience” principle and held as follows: “Court is of
the opinion that as between the two competing public interests, that is, the public interest in
granting an injunction to affirm a patent during the pendency of an infringement action, as
opposed to the public interest in access for the people to a lifesaving drug, the balance has to
be tilted in favour of the latter. The damage or injury that would occur to the applicant in
such case is capable of assessment in monetary terms. However, the injury to the public
which would be deprived of the respondent’s product, which may lead to shortening of lives
of several unknown persons, who are not parties to the suit, and which damage cannot be
restored in monetary terms, is not only non-compensable, it is irreparable. Thus, irreparable
injury would be caused if the injunction sought for is granted.”

(¶34) Thus, as per the balance of convenience principle and the aforementioned authorities, it
can be concluded that the balance of convenience in the present case lies in the favour of
Vamazom. It should be noted that the users have faced leakage of their data 69 and mental
harassment70 due to Viashare’s inability to provide adequate privacy to the data of the users
thus, it would be in public interest to refuse the grant of an injunction to Vamazom as it has
additional structural and hardware limitations that protect the privacy of the citizens.71

[C] THAT VIASHARE WOULD NOT SUFFER AN IRREPARABLE LOSS IF THE

INJUNCTION IS NOT GRANTED.
(¶35) It is humbly submitted before the Hon’ble Court that Viashare would not suffer an
irreparable loss if the injunction is not granted. 'Irreparable injury' means such injury which
cannot be adequately remedied by damages. The remedy by damages would be inadequate if

67
Anwar Elahi v. Vinod Misra And Anr 1995 (35) DRJ 341.
68
F. Hoffmann-La Roche Ltd. And Anr. v. Cipla 148 (2008) DLT 598.
69
Moot Proposition, Pg no. 2, para no. 6.
70
Moot Proposition, Pg. no. 2, para no. 7.
71
Moot Proposition, Pg. no. 2, para no. 4.

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the compensation ultimately payable to the applicant in case of success in the suit would not
place him in the position in which he was before injunction was refused.72

(¶36) It should be noted that due to the cyberattack massive amount of user data based on
consumer behaviour and personal details was leaked, as a consequence of which, the users
started getting fraudulent emails and phone calls.73 Not only this, the consumers faced mental
harassment too.74 Thus, it would not be wrong to deduce that the faith of the consumers in the
technology used by Viashare has been shaken. Thus, Viashare already has suffered a massive
loss due to the cyberattack. In such a situation, the granting of an injunction would make no
difference to the financial losses which are already being suffered by Viashare as it would not
restore the faith of the consumers in Viashare.

(¶37) Moreover, the concept of public interest was also read into the principle of irreparable
loss/injury in the landmark case of Roche v. Cipla75, whereby, between two competing
situations, the balance has to be tilted in favour of the situation which supports public
interest. In the case at hand, if an injunction is granted in favour of Viashare, this would
deprive the citizens of Vamazom’s services which promise a more efficient privacy policy
whereas on the contrary, if the injunction is not granted, the consumers can utilize the
services provided by Vamazom.

Thus, in light of the aforementioned precedents, it can be concluded that an ad interim

injunction shall not be granted in favour of Viashare.

[ISSUE V] THAT VAMAZOM DOES NOT VIOLATE THE RIGHT TO PRIVACY

OF CITIZENS.
(¶38) It is humbly submitted that the software used by Vamazom, a multinational company,
does not violate the right to privacy of the citizens. This can be substantiated by a two-fold
argument. Firstly, that Vamazom maintains transparency in its dealings [A]. Secondly, that
Vamazom is in compliance with the current data protection laws [B].

[A] THAT VAMAZOM MAINTAINS TRANSPARENCY IN ITS DEALINGS.

(¶39) It is humbly submitted before the Hon’ble Court that Vamazom maintains transparency
in its dealings. Vamazom has additional software/hardware limitations for privacy
72
Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336 (India).
73
Moot Proposition, Pg no. 2, para no. 6.
74
Supra note 17.
75
Supra note 15.

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enhancements.76 It is different from Viashare in the respect that the affiliate links are operable
on Vamazom only when the user signs into the website with the required credentials 77. Thus,
Vamazon can access the online behaviour of the consumer only when the respective
consumer has logged into his account thereby enhancing the privacy.

(¶40) Moreover, Vamazom has a transparent privacy policy whereby it provides a privacy
notice to all the individuals using its services. The privacy notice mentions the information
pertaining to the kind of data the software collects, stores, shares and processes. The use of
Vamazom services is subject to the acceptance of the terms & conditions mentioned in the
privacy notice. Thus, the user of Vamazom services always proceeds at their own free will. In
a landmark judgement78 rendered by the Hon’ble Supreme Court, this very contention was
raised. The Court had stressed upon the aspect of informational privacy and said,
“Informational privacy which does not deal with a person's body but deals with a person's
mind, and therefore recognises that an individual may have control over the dissemination of
material that is personal to him. Unauthorised use of such information may, therefore lead to
infringement of this right.”79

(¶41) In light of the aforementioned judgement, the right to informational privacy stands to
be infringed when there is an unauthorised use of such information. In the case at hand,
Vamazom provides the user with all the necessary details pertaining to the use of the
consumer’s data and processes that data only with the consent of the user. Thus, it cannot be
said that Vamazom breaches the right to privacy of the citizens.

(¶42) Furthermore, in a landmark judgement80 rendered by the U.S. Supreme Court, the
concept of ‘reasonable expectation of privacy’ was established. This doctrine puts forth the
idea that an individual’s expectation of privacy differs from place to place.81 Thus, it means
that when an individual voluntarily gives his personal information to a third party, his
expectation of privacy lessens. When it comes to social media data, the extent to which

76
Moot proposition, pg 2, para 4.
77
Ibid.
78
JUSTICE K.S. PUTTASWAMY VS. UNION OF INDIA (2017) 10 SCC 1
79
Nariman J. (K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1)
80
Katz vs United States, 389 U.S. 347, 361 (1967)
81
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

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individuals have a reasonable expectation of privacy in their social network publications

determines whether courts will consider searches of social data information "unreasonable".82

(¶43) Furthermore, it should also be noted that privacy is not entirely “lost” merely because a
person is in a public place.83 Thus, Vamazom derives a balance out of the aforementioned
concepts. Although the user voluntarily gives their personal information to Vamazom yet
Vamazom gives complete recognition and respect to the user’s right to privacy and uses only
that information which is necessary for conducting the business.

(¶44) Moreover, Vamazom would not attract any liability under Section 43A of the
Information Technology Act, 2000 as a body corporate attracts liability under the said
provision only when it is negligent in handling the sensitive personal information of the users
and does not follow the reasonable security procedures. In the instant case, Vamazom was not
negligent in handling the sensitive personal information of the users as well as it followed all
the reasonable security procedures.

[B] VAMAZOM IS IN COMPLIANCE WITH THE CURRENT DATA PROTECTION

LAWS.
(¶45) It is humbly submitted that Vamazom complies with all the current data protection laws
in Indiva. Although Indiva lacks a statutory law on data protection yet the landmark
judgement84 rendered by the Supreme Court remains an authority on the said topic.

(¶46) This judgement explored the concept of informational privacy and recognized the same
as the fundamental right of the citizens. In addition to this, it also laid down certain guidelines
with respect to this right to informational privacy. The court laid down that informational
privacy of an individual is violated when there is a blanket and indiscriminate collection of
information. An extensive power to retain collected data is seen as a disproportionate
interference with the right to privacy and not necessary in a democratic society. It also
emphasized the need to clearly stipulate the nature of the data being collected and ensure its
confidentiality. Provisions where these principles are not respected cannot be regarded as
valid. While courts do recognize the need for public order and security, they emphasize the
need to strike a balance between safeguarding public order and the right to privacy. Thus, the
82
Brian Mund, Social Media Searches and the Reasonable Expectation of Privacy, 19 YALE J.L. & TECH. 238
(2017).
83
K.S. Puttaswamy vs. Union of India (Chandrachud, J.).
84
Ibid.

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court relied on the principle of proportionality to ensure whether the right to privacy was
safeguarded or not. The Supreme Court adjudged that the collection and use of information
must be limited to the purpose specified by law and to the extent indispensable for the
protection of public interest. The striking of a balance between public and private interests
was held to be crucial to proportionality. It further held that there must be a protection against
unauthorized use and clearly defined conditions for processing of data collected.

(¶47) Vamazom fulfills all the above conditions laid down in the judgement. The kind of
information collected by Vamazom is only used for and limited to the purpose of conducting
business. Moreover, as already stated above, it mentions the purpose and use of the
information collected by it in clear terms. Thus, in this regard Vamazom fulfils all the
conditions laid down by the Puttaswamy judgement.

(¶48) Further, Vamazom also fulfills the conditions laid down by the Information
Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011.85 The Rules deal with protection of "Sensitive personal data or
information of a person". The rules provide the reasonable security practices and procedures,
which the body corporate or any person who on behalf of body corporate collects, receives,
possess, store, deals or handle information is required to follow while dealing with "Personal
sensitive data or information". In case of any breach, the body corporate or any other person
acting on behalf of body corporate, the body corporate may be held liable to pay damages to
the person so affected.

(¶49) Section 4 of the Information Technology (Reasonable Security Practices and

Procedures and Sensitive Personal Data or Information) Rules, 2011 lays down the
guidelines related to the disclosure of information to the users. Herein, it is mentioned that
the body corporate must provide the following information:

(i) Clear and easily accessible statements of its practices and policies; (ii) type of personal or
sensitive personal data or information collected under Rule 386; (iii) purpose of collection and
85
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011 at https://www.prsindia.org/sites/default/files/bill_files/IT_Rules_2011.pdf
86
Sensitive personal data or information.— Sensitive personal data or information of a person means such
personal information which consists of information relating to;— (i) password; (ii) financial information such
as Bank account or credit card or debit card or other payment instrument details ; (iii) physical, physiological
and mental health condition; (iv) sexual orientation; (v) medical records and history; (vi) Biometric
information; (vii) any detail relating to the above clauses as provided to body corporate for providing service;
and (viii) any of the information received under above clauses by body corporate for processing, stored or

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usage of such information; (iv) disclosure of information including sensitive personal data or
information as provided in Rule 6; (v) reasonable security practices and procedures as
provided under Rule 8.87 Thus, Vamazom fulfills all the requirements of the IT Rules, 2011 in
its privacy notice.

PRAYER

In light of the facts stated, issues raised, arguments advanced and authorities cited, the
respondent most humbly and respectfully in the interest of equity and justice prays and
requests the Hon’ble Court:

1. To dismiss the suit for interim injunction.

And/or

Pass any appropriate directions and orders as the Hon’ble Court deems fit in the
interest of justice, equity and good conscience.

And for this act of kindness the Respondent shall forever humbly pray.

processed under lawful contract or otherwise: provided that, any information that is freely available or
accessible in public domain or furnished under the Right to Information Act, 2005 or any other law for the time
being in force shall not be regarded as sensitive personal data or information for the purposes of these rules.
87
Reasonable Security Practices and Procedures.— (1) A body corporate or a person on its behalf shall be
considered to have complied with reasonable security practices and procedures, if they have implemented such
security practices and standards and have a comprehensive documented information security programme and
information security policies that contain managerial, technical, operational and physical security control
measures that are commensurate with the information assets being protected with the nature of business. In the
event of an information security breach, the body corporate or a person on its behalf shall be required to
demonstrate, as and when called upon to do so by the agency mandated under the law, that they have
implemented security control measures as per their documented information security programme and
information security policies.

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DATE: **
PLACE: Delica, Indiva

S/d___________________________

COUNSEL(S) ON BEHALF OF THE RESPONDENT

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