4th DELHI METROPOLITAN EDUCATION NATIONAL MOOT COURT COMPETITION

TC- 44

BEFORE

THE SUPREME COURT OF INDIA

(FILED UNDER ARTICLE 136 OF INDIAN CONSTITUTION)

(SLP)CRIMINAL CASE NO. /20

IN THE MATTER OF

NAVEEN & ORS. APPELLANTS

VS

STATE OF NCT OF DELLHI & ORS. RESPONDENTS

(UPON SUMBISSION TO THE HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES OF THE SUPREME
COURT OF INDIA)

MOST RESPECTFULLY SUMBITTED BY COUNSEL

APPEARING ON BEHALF OF THE APPELLANTS
1
MEMORIAL ON BEHALF OF THE PLAINTIFF
 RLC’S VIRTUAL INTRA-SEMESTER MOOT COURT COMPETITION

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS…...................................................................03

 INDEX OF AUTHORITIES….....................................................................04

 STATEMENT OF JURISDICTION......................................................................05

 STATEMENT OF FACTS.....................................................................................07

 ISSUES RAISED..................................................................................................06

 SUMMARY OF ARGUMENTS…..............................................................09

 ARGUMENTS ADVANCED..............................................................................10

 PRAYER...............................................................................................................27

2
MEMORIAL ON BEHALF OF THE APPELLANTS
 LIST OF ABBREVIATIONS

§ Section

§§ Sections

¶ Paragraph

¶¶ Paragraphs

Art. Article

WP Writ Petition

CRPC Code of Criminal Procedure

AIR All India Report

n. Note

Ors Others

SC Supreme Court

SCC Supreme Court Case

v. Versus

HC High Court

UOI Union of India

SCR Supreme Court Report

M.P Madhya Pradesh

U. P Uttar Pradesh

IPC Indian Penal Code

INDEX OF AUTHORITIES
 STATEMENT OF JURISDICTION

Article 136- Special leave to appeal by the Supreme Court.

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.
 ISSUES RAISED

1. Whether the Special Leave Petition filed by the Appellants against the Judgment of
the Hon’ble High Court maintainable?

2. Whether all the facts and circumstances have been analyzed competently before
deciding the case?

3. Whether the crime is one which falls in the rarest of the rare category or not?
 STATEMENT OF FACTS

1. The cold evening of Dellhi on December 16, 2015. The twenty-year old medico, namely
Sunita (referred to as respondent), had gone with her friend Suneel (referred to as
respondent), a medico, to watch a film at EP, while returning to the girls' hostel, was
standing at Jawahar Circle. The classic car, 'Innvova', 7-seater, with all the gadgets, bar,
pillows, and CCTV camera etc. driven by a commerce graduate Shri Naveen (referred to
as the Appellant) along with his three co-students, namely Ramesh, Suresh, and Dinesh
(Minor) (as referred to as A2, A3 and A4 respectively) and offered them a lift to drop off
at the girls' hostel on Jawahar Lal Nehru Marg, which was readily accepted by R2 and
R2.Sunita got prey to the savage lust of this gang of four, who threw the respondent,
namely Suneel, into the dense forest beyond Jagatpura after robbing him and giving
threats of murder. He became unconscious, was naked, and all four one by one assaulted
her in the car. Her private parts were ruptured to fulfil their perverted sexual appetites, an
unthinkable and sadistic pleasure. The attitude, perception, the beastial proclivity,
inconceivable self-obsession and individual centralism of the four made the young lady to
suffer immense trauma and, in the ultimate eventuate, the life-spark that moves the bodily
frame got extinguished in spite of availing of all the possible treatment that the medical
world could provide. Her uterus, vagina, and other parts were damaged by the iron rod.
She was thrown out of the car naked. The death took place at a hospital in IIMS, New
Delhi, where she had been taken with the hope that her life could be saved.

2. Shri Suneel (PW-1) survived. A motor cycle arrived and the said man Shri Raj Kumar
(PW-72) gave the shirt and contacted control room. The PCR Van took him to SMS
Hospital for treatment. Sunita was searched by the police was found unconscious and
naked, was provided with clothes and was carried to SMS Hospital and later to New Delhi.

3. Wide and vast publicity was given by the print and electronic media, the Government
agency became active. In depth investigation was continuously made and to bring the
charge, modern and progressive scientific methods were adopted. The Innova Car No. RJ-
14c-476 was 2 seized with iron rod, whisky bottles and glasses and CC TV footage. The
accused persons were arrested. Prosecutorix’s and Suneel’s mobiles were recovered along
with a lady wrist watch make Sonata, her stained clothes and Rs. 1,000/- robbed from
(PW-1). After arrest all the accused were medically examined. The MLCs of all the first
three accused show various injuries on their person, the struggle marks. Dying declaration
of the deceased was also recorded in SMS Hospital. DNA tests were done. FIR was filed
on 20.12.2015 by (PW-1), which was handed over to S.I. Pratibha Sharma (PW-80) for
investigation. Charge sheet filed on 3.1.2016 under sections 376(2)(g), 302, 120-B, 377,
365, 366, 396, 397, 307, 412, 201 and 34 of IPC and Sections 354(3) and 235(2) of Cr.
 SUMMARY OF ARGUMENTS
1. Whether the Special Leave Petition filed by the Appellants against the Judgment of
the Hon’ble High Court maintainable?
It is humbly submitted before the Hon’ble SC that the Special Leave Petition filled by the
Appellants, Shri Naveen & Ors, is maintainable, as the matter involves a substantial
question of law of general public importance. The arbitrary and hasty judgement of the
Hon’ble High Court awarded to the appellants to hang until death without analyzing the
entire facts of the case has resulted in a miscarriage of justice, and if the Supreme Court
does not intervene, it will result in gross injustice. The Hon’ble SC should therefore,
applying its wide jurisdiction conferred under Art. 136 of the Constitution of India, use
corrective measures to correct the wrong done by the decision of the High Court of Delhi

2. Whether all the facts and circumstances have been analyzed competently before
deciding the case?
It is respectfully submitted before the SC that the fact and circumstances of the case has
not been competently examined by the Hon’ble High court of Delhi, while awarding
capital punishment, where a Delayed registration of FIR, Inconsistencies and omission
amounting to contradiction in the testimony of PW-1, Admissibility and acceptability of
the dying declaration of the prosecutrix when no names were spelt out, Insertion of the
iron rod in the rectum and vagina after rape by all the convicts, there was no criminal
conspiracy, Age of Dinesh was 17 years and 10 months as per Matriculation School
Certificate against medical certificate of 18 years 8 moths.

3. Whether the crime is one which falls in the rarest of the rare category or not?
It is humbly submitted to the Hon'ble SC that the death penalty is not an appropriate
punishment for the offence committed by the Appellants because it is cruel and unusual
punishment that serves no justifiable penological goals and is not proportional to the
commission of crime, especially under the facts of the case. For instance, there was a lack
of Audi Alterm pattern, owing to the media trial case. The accused's (appellants')
statement was not heard concisely before the Trial and High Court of Delhi before the
Death Penalty was imposed. In this regard, the counsel humbly submits before the
Hon'ble Supreme Court that crime is not among the rarest of rare category.
 ARGUMENT ADVANCED

ISSUE 1- WHETHER THE SPECIAL LEAVE PETITION FILED BY

THE APPELLANTS AGAINST THE JUDGMENT OF THE HON’BLE
HIGH COURT MAINTAINABLE?

1.1 THE SUIT FILED IS MAINTAINABLE

1.1.1 It is humbly submitted before the Hon’ble Supreme Court that, Special Leave Petition
filed by the appellants, Shri Naveen & Ors, is maintainable, as the matter involves a
substantial question of law of general public importance. If the SC does not intervene, it
will result in gross injustice and that, miscarriage of justice has already occurred, by the
erring judgment of the High court of Delhi, which awarded death penalty to Appellants
without analyzing entire fact correctly and proper hearing was not taken place before
awarding capital punishment to appellants. Therefore, Special Leave Petition of the
Appellants must be accepted, so that Hon’ble Court can use its wide jurisdiction conferred
under Art. 136, to correct the wrong done by the decision given by the Delhi High Court.

1.1.2 It is respectfully submitted before the Hon’ble Supreme Court that the Death Penalty
imposed by the Hon’ble Delhi High Court is unjust and arbitrary since proper legal procedure
was not adopted due to the media trial case. As a result, the appellants were not given an
opportunity to be heard. Which also violates the AUDI ALTERAM PARTEM established by
the rule of common law. As a result, counsel is relying on the judgement of Pritam Singh v.
The State  (AIR 1950 SC 169:1950 SCR 453) 1 Court observed that "this court" should not
grant special leave, unless it is shown that "exceptional and special circumstances exist,"
that "substantial and grave injustice" has been done, and the case in question presents
features of sufficient gravity to warrant a review of the decision appealed against.

1.1.3 Furthermore, Counsel supports his statement on the judgment of the supreme court in
Mohammad Ajmal Mohammad Amir Kasab alias Abu Mujahid vs State of
Maharashtra (2012) 9 SCC 1 2where the court succinctly stated the approach that is needed
in dealing with the case of death sentence, with the following observation- “We may also
state here that since it is a case of death sentence, we intend to examine the materials on
record first hand, in accordance with the time-honored practice of this Court, and come to our
1
Pritam Singh v. The State  (AIR 1950 SC 169:1950 SCR 453)
2
Mohammad Ajmal Mohammad Amir Kasab alias Abu Mujahid vs State of Maharashtra (2012) 9 SCC 1
 own conclusions on all issues of facts and law, unbound by the findings of the trial court and
the High Court”. What Counsel mean to state is that the kasab case is more heinous than the
current case counsel representing on behalf of the appellants.

1.1.4 Furthermore, it was held in the case of Haryana State Industrial Corporation. v. Cork
Mfg. Co. (2007) 8 SCC 359 3 Jurisdiction conferred under Art. 136 on the SC are corrective
one and not a restrictive one. Moreover, In the case of Pawan Kumar v. State of Haryana,
(2003)11 SCC 2414. A duty is enjoined upon the SC to exercise its power by setting right the
illegality in the judgments is well-settled that illegality must not be allowed to be perpetrated
and failure by the SC to interfere with the same would amount to allowing the illegality to be
perpetuated. It has been held in the plenty of cases that when the question of law of general
public importance arises, the jurisdiction of SC can be invoked by filling special leave
petition. In the present case, the issue involves question of law and hence, entitled to be
maintainable.

1.1.5 In the case at hand, requisite and proper inquiries were not conducted regarding the age
of the Dinesh and creditworthiness of the scientific method as a witness and judgement was
passed without conducting proper investigation and collection of evidences. This has
disturbed the public. Hence, the matter concerned is of great public importance and the same
was maintainable.

3
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359
4
Pawan Kumar v. State of Haryana, (2003)11 SCC 241.
manufacturing a similar or identical product, without obtaining the permission of the plaintiff
company, amounts to an infringement of plaintiffs Patent rights under the Act.” It is humbly
submitted that the defendants, without taking any authorization from the plaintiff, have filed
patent application for software technology, which is patented in the plaintiff’s name and as a
result have violated the stipulation given under the Act. Therefore, the plaintiff has filed this
suit for injunction restraining the defendants from using the same kind of software
technology to run their business.

1.1.6 In the case of Rohtas Industries Limited v. IHP.Co.Ltd 3 it is been held that "Even proof
of an intention to infringe, apart from actual infringement, may justify an injunction to
restrain the infringement provided it is established to the satisfaction of the court that the
alleged infringer, dealing with what he is doing as a matter of substance, is taking the
invention claimed by the patent."

1.1.7 In the present case it is very substance of the software technology is being used by the
defendant company. The defendant company has knowingly copied the substance of the
patented software technology, i. e technology of affiliate links. The plaintiff has satisfactorily
established that defendant company is infringing the patent secured by the plaintiff.

 APPLICATION FOR AN INTERIM INJUNCTION

1.1.8 Order 39 Rule 1 of CPC talks about the grant of interim injunction and it’s
circumstances. Interim injunction is granted without finally deciding an application for
injunction and operates till the disposal of the application. Generally, before granting the
injunction the court must be satisfied about the following factors: -

i) Whether the plaintiff has a prima facie case?

ii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary
injunction is not granted?
iii) Whether the balance of (in) convenience is in favour of the plaintiff?

The above three rules are described as “three pillars” on which foundation of every order if
injunction rests.

1.1.9 For grant of temporary injunction, principles applicable to the infringement of patent
actions are that there is prima facie case, that the patent is valid and infringed, that the

3
Rohtas Industries Limited v. IHPCo. Ltd., AIR 1954 PATNA
balance of convenience is in favour of the injunction being granted and that the plaintiff will
suffer irreparable loss. It is also a rule of practice that if a patent is a new one, a mere
challenge at the bar would be quite sufficient for a refusal of a temporary injunction, but if
the patent is sufficiently old and has been worked, the court would, for the purpose of the
temporary injunction, presume the patent to be valid one. 4 Person being assignee of a patent
has locus standi to institute a suit for infringement of patent. 5 Further, there is cause of action
and in the interest of justice, and to protect the rights of the plaintiff regarding patented
software technology and to save the plaintiff company from the future losses which are
irreparable, the relief on interim injunction shall be granted.

 1.2 THERE IS A PRIMA FACIE CASE

1.2.1 Prima Facie case basically means a cause of action or defence that is sufficiently
established by a party’s evidence to justify a verdict in his or her favour. According to the
facts of the present case plaintiff’s software company has been granted patent protection on
5th January 2020 on its technology for managing internet affiliate programs. And defendant
company recently got its patent application published on 5th February 2021 which is similar to
the plaintiff’s patented software technology.

1.2.2 Law provides exclusive rights to the patent holder in respect to manufacture and sale of
patented goods. This also means that if the patented invention is used, manufactured copied
or sold for commercial purposes by any person, then the person will be accused of patent
infringement. Hence from the above-mentioned facts the plaintiff submit that, there is a prima
facie infringement of the patent and patentee's right that is guaranteed under the Patent Act
1970.

1.2.3 The Division Bench of Delhi High Court in Raj Prakash 6, were of the view that, “A
person is guilty of infringement if he makes what is in substance the equivalent of the
patented article. Some trifling or unessential variation has to be ignored. Therefore, it is clear
that the Applicant has made out a prima facie case for injunction against the Respondent.”

1.2.4 It is humbly submitted before this Hon’ble High Court that same sort of incident took
place in the present case. The defendant’s company owns a software application (substance)

4
Dyer Meakin Breweries Ltd vs Scotch Whisky Association, AIR 1980 Del 125
5
National Research Development Corporation of India vs Delhi Cloth and General Mills Co. Ltd. AIR 1980 Del
132
6
Raj Prakash v. Mangat Ram Choudhary and Ors. AIR 1978 Delhi 1
which is very much similar to the patented application of plaintiff, with negligible variations
or re-arrangements that can definitely be ignored. As majority chunk of substance is
replicated. The defendant company subtly copied the functions and method of the patented
software technology of the plaintiff and has filed an application claiming their own. Thus,
this leads to establish a prima facie case for the plaintiff. The only changes which are made in
the defendant software program is the mere hardware and additional structural changes,
which can be ignored. The court shall focus on the main substance of both the technology.

1.2.5 In matter of Strix Limited Vs. Maharaja Appliances Limited 7 it was held that, “The
conduct of the defendant is in complete violation of the principle laid down by this Court.
The contention that the defendant is not a fly-by-night operator and its business turnover is in
several crores or rupees is a contention that should work against the defendant for the simple
reason that the defendant is not expected to import a product without first checking if the
Chinese supplier holds a valid patent. Therefore, there was an obligation on the defendant,
even while it imported the same product from China, to ensure that it was not violating the
plaintiff's patent." It is humbly submitted before this Hon’ble High Court that; the defendant
was under an obligation for doing a research before launching a software-based technology.
Failing to do so the defendant company applied for same patented technology invented by the
plaintiff, thus prima facie infringing the patent granted to plaintiff company.

1.2.6 It is further humbly submitted before the Hon’ble High Court, that in the case of
Hindustan Lever Ltd vs Godrej Soaps Ltd8, the Court held that, the principles on which an
interlocutory injunction may be granted in a patent case are the same as in a case of under
Order XXXIX, rules 1 and 2. The plaintiff seeking an interim injunction in a patent case must
show a prima facie case and a balance of convenience. In a patent case, the burden of
establishing prima facie case is a heavy one.

1.2.7 It is humbly submitted before the Hon’ble High Court that, there is a prima facie
infringement of patented software technology by the defendant company. The plaintiff
company was granted patent on 5th January, 2020 on its technology for managing internet
affiliate programs. The technology placed an affiliated link or banner ads on a referring
website and for the whole transaction a commission is payable. However, after a year, the
defendant company applied for patentability for the same software technology as plaintiff

7
Strix Limited Vs. Maharaja Appliances Limited 2010(2) RAJ 145(Del)
8
Hindustan Lever Ltd vs Godrej Soaps Ltd AIR 1996 Cal 367
patented software technology. The means and function of the defendant company software
technology is same as plaintiff, thus prima facie infringing the patented technology of the
plaintiff.

 1.3 THERE WIL BE IRREPARABLE DAMAGE.

1.3.1 The second condition here is that the plaintiff must satisfy the court by showing that he
will suffer irreparable damage if the injunction is not granted and there is no other remedy
which can compensate the same.

1.3.2 In the present case, it is very clearly established, if defendant is granted the patent then
it will clearly cause great legal injury to plaintiff as defendant possess the same software
technology. Thus, it is humbly submitted, that any legal entity can copy the similar software
application as plaintiff, make minor modification and get patented as their own and acquire
profit which originally belong to the plaintiff. This will definitely cause long term irreparable
damage to the plaintiff company which cannot be compensated by any other remedy.

1.3.3 In the case of Tele mechanic and Control Limited (I) vs Schneider Electric Industries 9
report the court was of the view that, A patent create a statutory Monopoly protecting the
patentee against any unlicensed user of the patented device and that one violation is
established in a case of a registered patent it cannot be contended that the patentee is not
entitled to injunction and that a monopoly of the patent is the reward of the inventor.

1.3.4 It is humbly submitted before the Hon’ble Court that; the plaintiff has monopoly over
the software technology of affiliate links. The defendant company is illegally by lurking facts
and claims without mentioning the specifications in the patent application is trying to use the
monopolized software technology of the plaintiff. Relying on the above judicial precedent,
the court shall grant injunction against the defendant company, as they are trying to use a
registered patent without a license from the plaintiff company claiming as their own
invention, which will take over the market which belong to the plaintiff, the defendant
company is already earning commission up to 15% on their unauthorised software
technology. If the court doesn’t grant injunction, it shall cause an irreparable damage to the
plaintiff, which will in contrast to interest of justice.

9
Tele mechanic and Control Limited (I) v. Schneider Electric Industries (2002) (24) PTC 632 (Del) (DB)
1.3.5 The High Court of Delhi in the case of Novartis Ag & Anr10 were of the view that, “The
rights of the patentee are infringed if anyone makes and supplies or commercially uses and
the patentee may be granted interim order, subject to the condition if the patent is valid. It is
not incumbent upon the plaintiff in case of infringement to show that the plaintiff has
suffered commercial loss.”

1.3.6 It is humbly submitted before this Hon’ble High Court that, by relying on the above
mentioned judicial precedent and considering the facts of the present case we can submit that
the defendant by unlawful usage of the software application of the plaintiff’s company earned
profits which is indirectly proportional to the loss sustained by the plaintiff. And hence the
suit for injunctions stands maintainable.

 1.4 BALANCE OF CONVENIENCE FAVOURS THE PLAINTIFF

1.4.1 The third condition for granting an interim injunction is that the balance of convenience
must be in favour of the applicant in other words the court must be satisfied that the
comparative mischief hardship or inconvenience which is likely to be caused to the applicant
by refusing the injunction will be greater than that which is likely to be caused to the opposite
party by granting it.

1.4.2 In the case of Mariappan vs A.R. Safiyullah 11 2008 it was held that, it is a settled
position of law for granting an order of ad-interim injunction including the infringement of
Design, Copyrights and Patent, the applicant/plaintiff must prima facie establish that balance
of convenience lies clearly in his favour and irreparable loss that may be caused to him on
account of non-granting of an order of ad-interim injunction. Therefore, the sum and
substance of the said decision is that if there is an infringement of a patent, interim measure
by way of an order of interim injunction can be granted against the party who infringes the
patent.

1.4.3 It is humbly submitted before this Hon’ble High Court that the plaintiff has clearly
established prima facie case, and hence the court shall consider the question of granting an
injunction. Hence it is the duty of the court to consider the scale of inconvenience of the
plaintiff as against inconvenience of the defendant. As the inconvenience caused to the

10
Novartis Ag & Anr v. Cipla Ltd. 2015
11
Mariappan vs A.R. Safiyullah, 2008
plaintiff company is resulting from the unlawful usage of their software application by the
defendant is much greater than the defendant’s.

1.4.4 In the case of Smith vs. Gregg12 it was held that, the success that had been achieved by
the defendant by infringing the patent within the short span of one year also indicates the
need of protecting the interest of the plaintiffs and therefore, plaintiffs are entitled, so long as
it's patent to be upheld to a monopoly for its invention. Ultimately in the said decision the
Court has granted an order of injunction against the defendant for infringement of the patents
of the plaintiffs and the defendants therein was restrained from manufacturing and marketing
the product similar to the plaintiffs.

1.4.5 If the defendant’s business is a recent venture, as in this case, it would be proper to
grant

1.4.6 an injunction to prevent the violation of the plaintiff’s rights if the defendant can be
compensated in damages. It is the defendant’s own case here that their first sale was made in
Nov. 1992 while the plaintiff started their business in 1968. The balance, on the whole, tilts in
favour of the plaintiff. Mainly for the reasons that the defendants are new comer as compared
to an established proprietor. On balance of convenience High Court is inclined to grant
injunction.13 Where prima facie and balance of convenience are favouring plaintiff, ad
interim injunction has to be granted.14

1.4.7 In the present case the damage caused to the plaintiff due to infringement of the patent
is greater than the damage that will be caused to the defendant company. As the defendant
company recently got its patent application published and on the other hand plaintiff has been
in this software technology business since 2020. Also, the fact that defendant’s patent
application is almost same as the plaintiff’s makes us realize how essential it is to protect the
interest of plaintiff. Likewise, if the court fails to grant injunction it would send a message to
the business world that the huge corporation can exploit a small-scale company.

1.4.8 In case the entire scheme of the Act is examined carefully, it appears that the patent is
valid, the defendant has failed to establish prima facie credible defence and the case of
infringement is made out by the patentee, the plaintiff entitled for injunction. Therefore, to
say that public interest is a complete exception to the patent would not be correct as otherwise

12
Smith vs. Gregg 41 R.P.C. 149
13
(M/s.) Bhatia Plastics v. (M/s.) Peacock Industries Ltd., AIR 1995 Del 144
14
Revlon Inc. v. Hosiden Laboratories (India), AIR (NOC)77 (Delhi)]
the rights granted by the sovereign towards monopoly would be undermined by too broadly
interpreting the public interest.

1.4.9 It is humbly submitted before the Hon’ble High Court, the defendant if so, very much
concerned about the welfare of public and patents and its grounds are genuine and correct, it
could have filed the application for grant of Compulsory License. Thus, whether the public
interest exists or nor in a case involving infringement of Patents is essentially a question of
fact which has to be determined on case-to-case basis and no straight jacket formula can be
devised in order to infer the public interest in a Patent infringement action.
ISSUE 2- WHETHER THE CRIME IS ONE WHICH FALLS IN THE
RAREST OF THE RARE CATEGORY OR NOT?

The plaintiff humbly submits that, the patent granted to Viashare is valid as it fulfils all the
requirements under The Patents Act, 1970. All the software and computer related inventions
patent are granted according of the Patent Act, 1970 and Guidelines for Examination of
Computer Related Inventions (CRI).

2.1 DOES SECTION 3(k) OF THE PATENTS ACT COVERS

SOFTWARE INVENTIONS PATENTABILITY?

2.1.1 Section 3(k) of the act bars the patentability of a computer program per se. Section 3(k)
of the patent act, 1970, is broadly worded, evoking ambiguities as to what actually constitutes
the part of non- patentable subject matters under is ambit. However, Article 27 TRIPS says
that, patents shall be available for any inventions, whether products or processes, in all fields
of technology provided that they are new, involve an inventive step and are capable of
industrial application.15

2.1.2 Section 3(k) of the Patent Act, 1970 says that, what are not inventions include a
mathematical or business method or a computer programme per se or algorithms. However,
the judicial precedents have ruled about the ambiguities and in according a specific meaning
to the provision. In the case of Ericsson vs Intex 16, the Delhi High Court has unfolded the
interpretation of the term “computer program” under Section 3(k) of the Act. In the aforesaid
case, a suit for infringement of registered patents was filed. Seeking a permanent injunction
with damages.

2.1.3 The Court held that, a mere reference to the usage of a ‘procedure’, an ‘algorithm’ or a
‘method’ in an apparatus that also consist of network or hardware elements so as to bring
about a technical effect, doesn’t put the claimed invention in the category of “computer
program per se”. The High Court placed reliance on the interpretation made in the case of
VICOM Systems Inc.17, wherein it was stated that a patentable invention based on
conventional patentability criteria shouldn’t be regarded as non-patentability because

15
Article 27 of Trade-Related Aspects of Intellectual Property Rights (TRIPS)
16
Ericsson vs Intex, I.A. No. 6735/2014 in CS (OS) No.1045/ 2014, Delhi High Court.
17
VICOM Systems Inc. Case No. T 208/84
computer program has been used for the implementation of the said invention. Decisive is
what technical contribution the invention as defined in the claim when considered as a whole
makes to the known art. Finally, it would seem illogical to grant protection for a technical
process controlled by a suitably programmed computer but not for the computer itself when
set up to execute the control.

2.1.4 The test laid down in the VICOM case is that in an invention even, if the idea
underlying an invention may be considered to reside in a mathematical method, a claim
directed to a technical process in which the method is used does not seek protection for the
mathematical method as such. The reasoning given by the Board was that the method by
itself is not being patented but the technical process in which the method is used is
patentable.

2.1.5 It is humbly submitted before the Hon’ble High Court that, the software invention of the
Viashare doesn’t come under bar of Section 3(k) of the Patent Act, 1970. The patent was
granted on the technology managing internet affiliate programs. The patent protection wasn’t
granted on the algorithm or the computer program itself, but the technology to which the
algorithm and computer program contributes, which is not a bar under Section 3(k) of the
Act.

2.1.6 In the case of Ferid Allani vs Union of India 18, a patent application was filed by the
petitioner, seeking patent for “a method and device for accessing information sources and
services on the web”. The patent office objected to the application on the ground of novelty
and non-patentability under section 2(1) (j) and Section 3(k) respectively of the Patent Act,
1970. The appeal was filed before the Appellate Board but the decision of the patent office
was upheld. The Petitioner approached the Delhi High Court, the petitioner relied on the
Draft Guidelines for Examination of Computer Related Inventions, 2013 which define
"technical effect" and "technical advancement" as under:

2.1.7 Technical Effect19, it is defined for the purpose of these guidelines as solution to a
technical problem, which the invention taken as a whole, tends to overcome. A few general
examples of technical effect are as follows: a) Higher speed, b) Reduced hard-disk access
time, c) More economical use of memory, d) More efficient data base search strategy, e)

18
Ferid Allani vs Union of India, W.P.(C) 7/2014 & CM APPL. 40736/2019, Delhi High Court
19
Clause 3.15 of CRI’s Guidelines, 2013
More effective data compression techniques, f) Improved use interface, g) Better control of
robotic arm, h) Improved reception/transmission of a radio signal, is technical effect.

2.1.8 Technical Advancement20- It is defined for the purpose of these guidelines as

contribution to the state of art in any field of technology. It is important to divide between
software, which has a technical outcome, and that which doesn't, while assessing technical
advance of the invention. Technical advancement comes with technical effect, but all
technical effects may or may not result in technical advancement."

2.1.9 Further the High Court said that, Section 3(k) has a long legislative history and various
judicial decisions have also interpreted this provision. The bar on patenting is in respect of
`computer programs per se ' and not all inventions based on computer programs. In today’s
digital world, when most inventions are based on computer programs, it would be retrograde
to argue that all such inventions would not be patentable. Innovation in the field of artificial
intelligence, blockchain technologies and other digital products would be based on computer
programs, however the same would not become non- patentable inventions simply for that
reason. It is rare to see a product which is not based on a computer program. Whether they
are cars and other automobiles, microwave ovens, washing machines, refrigerators, they all
have some sort of computer programs in-built in them. Thus, the effect that such programs
produce including in digital and electronic products is crucial in determining the test of
patentability.

2.1.10 The Plaintiff humbly submits that; the software technology of plaintiff does have
technical effect and technical advancement. The affiliate links can be used as economical use
of memory, and also help with more efficient base search strategy. The affiliated links tracks
online behaviour of the user which helps the company to observe any unusual behaviour. The
tracking can lead to discover from unfamiliar behaviour as the company gain insight into
users, their behaviour and preferences. For organizations, companies, websites and others,
these insights serve as powerful tools for optimising the user experience, for statistical
purposes, customization, commerce and for profiling and targeted marketing. And if they
develop any unusual behaviour, plaintiff also has the right to block anyone from using such
an arrangement of links, which is a technical advancement for the affiliated links.

2.1.11 The Plaintiff further submits that, the term 'algorithm' is being misunderstood and
misinterpreted by the defendant inasmuch as the bar of Section 3(k) applies to algorithms

20
Clause 3.16 of CRI’s Guidelines, 2013
which are theoretical in nature and/or abstract formulae. This bar of Section 3(k) does not
apply when in a patent involving modern day technology, algorithms are employed in order
to perform certain calculations or selections which are thereafter utilized by various hardware
components or elements to produce/improve a technology and create a practical effect or
result in a physical realization21. However, it is pertinent to note herein that these instructions
are not mere abstract algorithms /computer programmes but are inter alia firmware which
results in a technical effect/practical output.

2.2 RELATION BETWEEN THE PATENT ACT AND CRI GUIDELINES

2.2.1 The patentability of software inventions can be understood in light of Section 3(k) as
said before and also the guidelines for examinations of Computer Related Inventions (CRI)
published by the office of the Controller General of Patent, Designs and Trademarks.

2.2.2 Creators of knowledge in the domain of Computer Related Inventions CRI have
consistently endeavoured for appropriate protection of their IPRs. The Patent regimes have to
cope up with the challenges of processing of patent applications related to computer related
inventions and other related technologies. Major patent offices across the world are
confronted with the issue of patentability of CRI’s. They have developed examination
guidelines/manuals of patent applications from these areas of technology so as to achieve
uniform examination practice.

2.2.3 Insofar as Computer Related Inventions are concerned, there are three sets of guidelines
that have been published by the Patent Office. The initial Guidelines are termed as “Draft
Guidelines”, the second document is described as “Guidelines” and the one issued in 2017 is
termed “Revised Guidelines”. While the initial 2013 Draft Guidelines defines "technical
effect". The meaning of “technical effect‟ is no longer in dispute owing to the development of
judicial precedents and patent office practices internationally and in India. There can be no
doubt as to the fact that the patent application deserves to be considered in the context of
settled judicial precedents which have now laid down the interpretation of Section 3(k), the
Guidelines and other material including the legislative material.

2.2.4 However, recent patent grant CRI’s by the Patent Office indicate that software
inventions shall be patentable if:

21
Ericsson vs Lava International Ltd, I.A. Nos.5768/2015 & 16011/2015 in CS(OS) No.764/2015, Delhi High
Court
  There is technical advancement is the invention over the existing prior acts, and
 The invention provides a technical solution to a technical problem by providing a
practical application or an improved technical effect of the underling software.

The latest guidelines state that while examining a computer program related invention, the
patent officer would focus on the underlying substance of the invention and not a particular
form in which it is claimed.

2.2.5 The examination procedure of patent applications relating to CRIs is the same as that
for other inventions to the extent of consideration of novelty, inventive step, industrial
applicability and sufficiency of disclosure etc. The determination that the subject matter
relates to one of the excluded categories requires greater skill on the part of the examiner and
these guidelines focus more on this aspect.

 Novelty- Novelty is the foremost requirement to determine the patentability of any

invention. No invention can be held patentable if the subject matter as described and
claimed was disclosed before the date of filing, or before the date of priority, as the
case may be. The determination of novelty in respect of CRIs is no different from any
other field of invention.
 Inventive step- Inventive step is decided in accordance with the provisions of section
2(1) (ja) of the Indian Patents Act, 1970. The determination of inventive step with
regard to CRIs is carried out in like manner as in other categories of inventions. As
per 2(1) (ja), "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. The
plaintiff humbly submits that, the obviousness must be strictly and objectively judged.
While determining inventive step, it is important to look at the invention as a whole.
Therefore, this technical advance comparison should be done with the subject matter
of invention and it should be found it is not related to any excluded subjects.22
 Industrial Applicability: In patent law, industrial applicability or industrial
application is a patentability requirement according to which a patent can only be
granted for an invention which is capable of industrial application, i.e., for an
invention which can be made or used in some kind of industry.

22
IPAB in Yahoo Inc vs Assistant Controller Of Patents, Designs & Rediff.com India Limited
OA/22/2010/PT/CH
2.2.6 It is humbly submitted before the Hon’ble High Court, that the invention of the plaintiff
has novelty, inventive step and industrial application. The affiliated links technology was first
patented by the plaintiff as it stands out all the other technical developments. Technology is
that when a user links on the affiliated link, the plaintiff has the ability to track user online
behaviour from the moment the user clicks on a banner ad on a referring web site to the point
of a completed transaction on a merchant’s site. Which creates novelty in the patent
technology granted to the plaintiff.

2.2.7 Further, A commission, payable to the referring site, is the generated when a user clicks
on one of these, “affiliate links” or banner ads and the purchases something from the
merchant’s site. The technology not only allows the plaintiff to monitor user behaviour but
also has a right to block the user. Right to block is a great inventive step as no other
corporations has developed it yet. The technology patented by the plaintiff has industrial
application, as it contributes to tech and software industry and helps in growth of merchant
websites and referring websites. The technology ticks all the requirement needed under
guidelines CRI, the patent has novelty, invention and inventive step and also industrial
application.

 Sufficiency of Disclosure: The invention shall be described fully and particularly to

satisfy the ‘what’ requirement and further the best method of performing the invention
known to the applicant to satisfy the ‘how’ requirement. The complete specification
should therefore, disclose the invention completely to meet the requirement of the
Patents Act and should also enable a person skilled in the art to work the invention
without any assistance of the patentee or any further experimentation. The description
must be unambiguous, clear, correct and accurate. It must not contain any statements
which may mislead the person skilled in the art to whom the specification is
addressed. While the requirements of sufficiency of disclosure is considered generally
in all fields of invention; in cases of patent application concerning computer related
inventions (CRIs), these requirements are considered as fulfilled if the specification
addresses the following:
 Fully and particularly (What): If the patent application relates to
apparatus/system/device i.e., hardware-based inventions, each and every feature of the
invention shall be described with suitable illustrative drawings. The working
relationship of different components together with connectivity shall be described.
The desired result/output or the outcome of the invention as envisaged in the
 specification and of any intermediate applicable components/steps shall be clearly
described.
 Best Method of performing the invention (How): The best mode of performing
and/or use of the invention shall be described with suitable illustrations. The
specification should not limit the description of the invention only to its functionality
rather it should specifically and clearly describe the implementation of the invention.
 Claims: The claims should clearly define the scope of the invention and should take
care of unity of invention requirements as defined under section 10(5) of the Patents
Act, 1970. The claim(s) of a complete specification should be clear and succinct and
should be fairly based on the matter disclosed in the specification. The claims in the
field of Computer related inventions need to be construed to ascertain the substance of
the claim without wholly relying on the forms and types of the claims.
 Form and substance: The sub-section 3(k) excludes a mathematical or business
method or a computer programme per se or algorithms from patentability. While the
judgment of mathematical methods or business methods is comparatively easier, it is
the computer programme per se or algorithms related inventions that require careful
consideration of the examiner. Computer programmes are often claimed in the form
of method claims or system claims with some “means” indicating the functions of
flow charts or process steps. The algorithm related claims are even wider than the
computer programmes claimed by themselves as a single algorithm can be
implemented through different programmes in different computer languages.
Even when the issue is related to hardware/software relation, the expression of the
functionality as a “method” is to be judged on its substance. It is well-established that,
in patentability cases, the focus should be on the underlying substance of the
invention, not the particular form in which it is claimed.

2.2.8 The Plaintiff humbly submits that; the patented software technology of the plaintiff is a
method which is different from other technology. The form and substance of the technology
is clearly valid and approved by the patent office. The means of the patented software
technology is in higher standards than the already existing ones. The underlying substance of
the invention is that the technology of the plaintiff has ability to observe online behaviour of
the customers, which gives them the ability to provide better services and benefits to the
customers, the technology similarly has right to block a customer from using an arrangement
of links, which can be helpful to stop unlawful activities done by the consumers as well as
retailers.

 Means plus Function: The claims concerning CRIs are often phrased in means for
performing some function such as means for converting digital to analogy signal etc.
These types of claims are termed as means + function format. The “means” mentioned
in the claims shall clearly be defined with the help of physical constructional features
and their reference numerals to enhance the intelligibility of the claims. The claims in
means plus function form shall not be allowed if the structural features of those means
are not disclosed in the specification.

2.2.9 In the case of Ram Narain Kher vs Ambassador Industries 23, the Court held that, at the
time the patent is granted to a party, it is essential that the party claiming the patent should
specify what particular features of his devices distinguish it from those which had gone
before and show the nature of the improvement which is said to constitute the invention. A
person claiming a patent has not only to allege the improvement in art in the form but also
that the improvement effected a new and very useful addition to the existing state of
knowledge. The novelty or the invention has to be succinctly stated in the claim. It is no
doubt true that the claim made is addressed to the skilled persons in the art or trade and not to
a common man yet there can be no escape from the fact that the novelty of the claim or the
advantage derived by the invention has to be succinctly stated in the claim and must not be
left to an inference raised on a general review of the specification. It is equally true that even
when the invention ‘was not itself new’, ‘the particular use of it for the purpose described in
combination with the other elements of the system, and producing the advantageous results,
would be a sufficient element of novelty to support the patent. It may be only a small step but
that may be a step forward and that is all that is necessary so far as the subject-matter is
concerned.

2.2.10 Thus, the plaintiff humbly submits that, the software technology patented by the
plaintiff is valid as per Patent Act and Computer Related Inventions Guidelines. It is humbly
submitted before the Hon’ble High Court that the patented technology of plaintiff is valid
under the Patent Act, 1970. The software technology was given protection under patent act,
by the patent office after following procedures laid down in the act and with due
considerations, along with taking guidelines for examinations of computer related inventions

23
Ram Narain Kher vs Ambassador Industries AIR 1976 Del 87
(CRI’s) into attention. The patented software technology of plaintiff has novelty, inventive
step and industrial application as required under the Patent act, 1970 and CRI’s guidelines.
Plus, it is clearly mentioned working and usage of the patented software technology of
affiliated links, and for what purpose. The software technology has means and function.
 PRAYER

Therefore, in the light of facts stated, issues raised, authorities cited, argument advances, it is
humbly prayed before the Hon’ble High Court be pleased and declared that,

1. The suit filed by Viashare against Vamazom is maintainable and interim

injunction shall be granted in favour of Viashare and damages of ₹10 crore
rupees.
2. The patent granted to the Viashare is valid.

And pass any order, decree, judgement as this Hon’ble High Court may deem fit in the light
of justice, equity and good conscience.

For this act of kindness, the plaintiff shall be duty bound forever pray.