Plaintiff TC Dme 409.

DELHI METROPOLITAN EDUCATION NATIONAL MOOT COURT 2021
MEMORIAL ON BEHALF OF THE PLAINTIFF
TEAM CODE: TC DME 409
4th DELHI METROPOLITAN EDUCATION NATIONAL MOOT

COURT COMPETITION – 2021
BEFORE
THE HON’BLE HIGH COURT OF DELICA
VIASHARE PVT. LTD. COMPANY

……………………....PLAINTIFF
V.
VAMAZOM PVT. LTD. COMPANY

……………………RESPONDENT
MEMORIAL ON BEHALF OF PLAINTIFF
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TABLE OF CONTENTS
COVER PAGE
TABLE OF CONTENTS...........................................................................................................................1
INDEX OF AUTHORITIES .....................................................................................................................2
STATEMENT OF JURISDICTION ........................................................................................................ 6
ISSUES RAISED ......................................................................................................................................7
STATEMENT OF FACTS.........................................................................................................................8
SUMMARY OF ARGUMENTS……………………….........................................................................10
PLEADINGS INCLUDING CONCLUSION/ PRAYER FOR RELIEF………………........................12
ISSUE 1: WHETHER THE SUIT FILED BY VIASHARE AGAINST VAMAZOM IS

MAINTAINABLE................................................................................................................................12
[1.1] SUIT INSTITUTED FOR THE INFRINGEMENT OF PATENT PROTECTION........................12
[1.2] ACTION FOR THE INFRINGEMENT INSTITUTED IN THE HIGH COURT OF DELICA.....14
[1.3] PERIOD OF LIMITATION.............................................…………………………………………15
[1.4] PRIMA FACIE INFRINGEMENT OF THE PATENT...................................................................15
ISSUE 2: WHETHER AN AD-INTERIM INJUNCTION SHOULD BE GRANTED IN
FAVOUR OF VIASHARE.....................................................................................................................15
[2.1] PRIMA FACIE CASE OF INFRINGEMENT OF THE PATENT..................................................16
[2.2] BALANCE OF CONVENIENCE IN FAVOR OF VIASHARE.....................................................18
[2.3] NON-GRANT OF INJUNCTION CAUSES IRREPARABLE DAMAGES..................................19
ISSUE 3: WHETHER THESE SOFTWARE’S VIOLATES RIGHT TO PRIVACY OF
CITIZENS................................................................................................................................................20
[3.1] LAWFUL PURPOSE CONNECTED WITH A FUNCTION OR ACTIVITY WHICH IS
NECESSARY............................................................................................................................................21
[3.2] NO NEGLIGENCE IN IMPLEMENTING AND MAINTAINING REASONABLE SECURITY
PRACTICES ON PART OF VIASHARE..............................................................................................21
[3.3] PRIVACY POLICY AND CONSENT............................................................................................22
[3.4] NO SPECIFIC LEGISLATION ENACTED PRIMARILY FOR DATA PROTECTION..............22
ISSUE 4: WHETHER THE PATENT GRANTED TO VIASHARE IS VALID ..........................23
[4.1] VALIDITY OF THE PATENT GRANTED TO VIASHARE……………....................................23
[4.2] SOFTWARE PROGRAMS ARE PATENTABLE……………………………..............................25
[4.3] NO PRE/ POST GRANT OPPOSITION AND COUNTERCLAIM..........................……………27
ISSUE 5: WHETHER PATENT SHOULD BE GRANTED TO VAMAZOM.............................27
[5.1] LACK OF NOVELTY…………………………………………………..................………………28
[5.2] PUBLICATION OF INVENTION BEFORE PRIORITY DATE…..............................…….……28
[5.3] PRIOR ART AND PRIOR CLAIMING…….............................……………………….…………28
[5.4] SOFTWARE IS OBVIOUS AND LACKS INVENTIVE STEP.....................……………………29
PRAYER..................................................................................................................................................30
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TABLE OF AUTHORITIES
[A.] CASES
1. 3M Innovative Properties Company Another v. M/S. Venus Safety Health Pvt. Ltd Another,
2016 SCC OnLine Del 5232……………………………………………………………….30
2. American Cyanamid v. Ethicon, [1975] RPC 513…………………………………...…12,16
3. Anand Prasad Agarwalla v. Takeshwar Prasad and Ors., (2001) 5 SCC 568……………...14
4. Antaryami Dalabehera v. Bishnu Charan Dalabehera, 2002 I OLR 531…………………..15
5. Anwar Elahi v. Vinod Misra, 1995 IVAD Delhi 576............................................................15
6. Australian Broadcasting Corporation v. O'Neill, (2006) 229 ALR 457……………....……15
7. Accenture Global Service GMBH v. Assistant Controller of Patents & Design and the
Examiner of Patents, OA/22/2009/PT/DEL……………………………………………......23
8. Baburam Agarwalla v. Jamunadas Ramji & Co., AIR (38) 1951 Calcutta 239………...….15
9. Bajaj Auto Limited v. TVS Motor Company, (2009) Supreme court case 797………...10,14
10. Baron Alderson in Morgan v. Seaward, ORA/5/2008/PT/DEL…………………..…......…26
11. Bayer Corporation & Ors. v. UOI, 2009 SCC OnLine Del 2469……………………….......9
12. Beecham Group Limited v. Bristol Laboratories Private Limited., 1967 (16) RPC 40…....15
13. Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd., 2005 (1) CHN 582…………................15
14. Bilcare Limited v. M/S. The Supreme Industries Ltd, MIPR 2007 (2) 13………............…20
15. Bilcare Ltd. v. Amartara Pvt. Ltd., 2007 (34) PTC 419 (Del)…………………...............…15
16. Binoy Viswam v. Union of India And Others, (2017) 7 SCC 59………………............…..17
17. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC
511...............................................................................................................................15,20,21
18. Blakey & Co. v. Lathem & Co., 1889 (6) RPC 184 (CA)…………………………….........21
19. Cadila Pharmaceuticals Ltd. v. Instacare Pvt. Ltd., 2001(21) PTC 472 (Guj)......................20
20. CDE Asia Limited v. Jaideep Shekar & Anr., CS (COMM) 124/2019……………...........24
21. Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT
336…...........................................................................................................................1, 15, 16
22. Dalpat Kumar & Anr. v. Prahlad Singh & Ors, AIR 1993 SC 276…………….............13, 16
23. Duli Chand v. Mahabir Pershad, AIR 1984 Del 145…………………………….............…17
24. Enercon India Limited v. Aloys Wobben, (2010) IPAB 125……………………..........21, 26
25. F. Hoffman-La Roche Ltd. v. Cipla Ltd., 159 (2009) DLT 243 (DB)……………....10, 21, 26
26. Ferid Allani v. Union Of India & Ors, (2020) 81 PTC 489..................................................22
27. Farbewerke Hoechst Meister Lucius v. Unichem Laboratories, AIR 1969 Bom 255…......25
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28. G v. Teva US Court of Appeals for Federal Circuit, ORA/29/2011/PT/MUM……………26
29. Gandhimathi Appliances Ltd. v. L.G. Varadaraju, 2001 (1) CTR 459………………...10, 20
30. Garware-Wall Ropes Ltd. v. Techfab India and 5 Ors. 2009(39) PTC 297(Guj) (DB)…....24
31. Glaverbel S.A. v. Dave Rose, 2010 (43) PTC 630(Del)……...................................………21
32. Gobind v. State of Madhya Pradesh, (1975) SCC (Cri) 468……………….............………19
33. Godrej Soaps Ltd. And Procter & Gamble Godrej Ltd. v. Hindustan Lever Ltd. And Others,
(1993) 98 CWN 131………………………………………………………………..........…20
34. Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co. Ahmedabad, 1995(5)
SCC 545………………………………………………………………………….............…13
35. Helifix Ltd. v. Blok-Lok Ltd., 208 F.3d 1339aj……………………………………............15
36. HTS v. Apple, (2013) EWCA Civ 451..................................................................................22
37. Hind Mosaic and Cement Works Another v. Shree Sahjanand Trading Corporation, MIPR
2008 (1) 402…………………………………………………………………………..........20
38. Hindustan Unilever Limited v. Eureka Forbes Limited, 2019 SCC OnLine Del 7442.......…11
39. Indian Overseas Bank, Madras v. Chemical Construction Co., (1979) 4 SCC 358……......15
40. James Lewis Kraft v. Oliver Kenneth McAnuit, AIR 1931 PC 279........................................10
41. Justice K.S. Puttaswamy (Retd.) v. Union of India., 2017 (10) SCALE 1......…………….19
42. K. Ramu v. Adyar Ananda Bhavan & Mutha Lakshmi Bhavan., MIPR 2007 (1) 352.........11
43. L.G. Corporation v. Intermarket (P) Ltd. and Anr. (2006) 32 PTC 429.................................15
44. Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co., (1935) 37 BOMLR 665...….25
45. Lallubhai v. Sankalchand, AIR 1934 Bom 407………………………………….................25
46. Lambda Eastern Telecommunication v. Acme Tele Power Private Ltd., 2008 SCC OnLine
Utt 5…………………………………………………………………………….........…......12
47. M.C.Jayasingh v. Mishra Dhatu Nigam Limited, 2014 SCC OnLine MAD 163……...…..20
48. M/S. Kusum Ingots & Alloys Ltd v. Union of India, 2004 (3) CTC 365………………....….11
49. Marin Burn Ltd. v. R.N. Banerjee., 1958-I L.L.J. 247……………………………..………..14
50. Monsanto Company v. Coramandal Indag Products (P) Ltd,1986 AIR 712………………...26
51. Merck Sharp & Anr. v. Glenmark Pharmaceuticals, 2015 SCConline Del 8227…………...16
52. Novartis A.G. v. Union of India & Ors., (2013) 6 SCC 1……………………………….....21
53. Novartis Ag & Anr v. Cipla., (2015) 216 DLT 689……………………………………....…11
54. Novartis Ag. v. Adarsh Pharma and Anr., 2004 (3) CTC 95………...………………….…25
55. NRDC Co. v. DCM Ltd., AIR 1980 Delhi 132………………………………………...........10
56. Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut
LT 336……………………………………………………………………………….....15, 16
57. Parasram Harnandrai v. Chitandas, AIR 1952 Cal 82…………………………………...…15
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58. Pfizer Products Inc. v. Rajesh Chopra, (2006) 32 PTC 301……………………………....…11

59. Prakash Singh v. State of Haryana, 2002 (4) Civil L.J.71 (P.H)..........…………………….13
60. Pritikiran Rajendra Katole v. Harsha Ravindra Katole, AIR 2014 Bombay 2……………....11
61. Raj Parkash v. Mangat Ram Chowdhary, AIR 1978 Del 1…………………………….......14
62. Ram Narain Kher v. Ambassador Industries, AIR 1976 Del 87…………………………...21
63. Ravi Kamal Bali v. Kala Tech & Ors., 2008(110) Bom LR 2167…………………………14
64. S. Oliver Bernd GmbH & Co. v. Karni Enterprises and Anr., (2006) 33 PTC 574…….10, 11
65. Salzer Electronics Limited v. S.G.Controls & Switchgear, 2014 SCC OnLine Mad 1415.....10
66. Sanjay Trading Company v. Dal Chemical N.V, AIR 1978 Cal 397………………………15
67. Seema Arshad v. MCGM, (2006) 5 Scale 263……………..................................................13
68. Shanti Kumar Pandey v. Shakuntala Devi, (2004) 1 SCC 438…………………………,,,..13
69. Sheo Ratan Singh v. Rajendra Singh, AIR 1925 Oudh 652………………………………....10
70. Srinivasa Raja v. Krishnamachari Ramu, (2011) IPAB 93………………………………...21
71. Standipack Private Ltd v. Oswal Trading Company Ltd., 1999 PTC 479………….......……10
72. State of Orissa v. Madan Gopal, 1952 AIR 12…………………………………………......13
73. State of Punjab v. A.K Raha (Engineers) Ltd., AIR 1964 Cal 418 (DB)……………….........15
74. Sterlite Technologies v. ZTT India Private, 2019 SCC OnLine Del 9124………..........17, 16
75. Strix Limited v. Maharaja Appliances Ltd., MIPR 2010 (1) 181…………......……10, 20, 24
76. Surendra Lal Mahendra v. Jain Glazers, (1979) 11 SCC 511…………………………….....15
77. TC Limited v. Godfray Phillips India Ltd., AIR 2014 Calcutta 19………………………...11
78. Telefonaktiebolaget Ericsson v. Intex Limited, 2015 SCC OnLine del 8229……..............23
79. Telemecanique Limited v. Schneider Electric Industries, SA (2002 (24) PTC 632 (Del)…...11
80. Ten Xc Wireless Inc. v. Mobi Antenna Technologies Co. Ltd., (2011) SCC OnLine Del
4648…………......………………………………………………………………………….21
81. The Bombay Agarwal Co. Akola v. Ramchand Diwanchand, AIR 1953 Nag 154….....……10
82. The Deputy Cit (Asstt) (S) v. Mastek Limited Opponent(S), (2011) ITAT 7893…...……..20
83. Thomson Brandt v. Controller of Patents and Designs, AIR 1989 Delhi 249……....…20, 21
84. Uttara Bank v. Macneill & Kilburn Ltd., 33DLR (AD) 298…………………….…………13
85. Yahoo Inc. (Formerly Overture Service Inc.) v. Assistant Controller of Patents and Designs
& Rediff.com India Limited. (2011) IPAB 106....................................................................21
86. W. O. Holdsworth v. State of UP AIR 1957 SC 887……………………………................17
87. Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727……………………....……..13, 15
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[B.] CONSTITUTIONS
1. The Constitution of India, 1950.
[C.] STATUTES
1. Patents Act,1970.
2. Information Technology act, 2000.
[D.] INTERNATIONAL CONVENTIONS

3. TRIPS, 1995.
4. Patent Cooperation Treaty, 1970.
5. Washington Treaty on Intellectual Property, 1989.
6. Paris Convention, 1883.
7. Patent Law Treaty, 2005.
8. Patent Cooperation Treaty, 1970.
9. Budapest Treaty, 1977.
[E.] BOOKS
1. P.M. Bakshi, The Constitution of India, 15th Edition, 2018.
2. Durga Das Basu, Commentary on the Constitution of India, 8th Edition, 2007.
3. Mr Sagar Kishore Savale, Indian Patents Act, 1970.
4. Pavan Duggal, Cyber Law, 2nd Edition.
5. Vakul Sharma, Information Technology, 5th Edition.
6. V.K. Ahuja, Intellectual Property Rights, 2nd Edition.
7. Adarsh Ramanujan, Patent Law, 2nd Edition.
[F.] DICTIONARIES REFERRED

1. Law Lexicon, P. Ramanatha Aiyar, 6th Reprint Edition 1995.
2. Oxford Advanced Learner’s Dictionary, 4th Edition.
[G.] ONLINE SOURCES

1. Manupatra Online Resources, http://www.manupatra.com.
2. SSC Online, http://www.scconline.co.in.
3. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
4. Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
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STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
• JURISDICTION- SECTION 107 OF PATENTS ACT, 1970
“No suit for a declaration under section 105 or for any relief under section 106 or for
infringement of a patent shall be instituted in any court inferior to a district court having
jurisdiction to try the suit: Provided that where a counter-claim for revocation of the patent is
made by the defendant, the suit, along with the counter-claim, shall be transferred to the High
Court for decision”.
• POWER OF HIGH COURTS TO MAKE RULES
The Hon’ble High Court of Delica has Jurisdiction to entertain this suit by virtue of powers
conferred on High Courts under Section 158 of The Patents Act, 1970.
The High Court may make rules consistent with this Act as to the conduct and procedure in
respect of all proceedings before it under this Act.
• SECTION 129 CPC POWER OF HIGH COURT TO MAKE RULES AS TO THEIR

ORIGINAL CIVIL PROCEDURE.
Notwithstanding anything in this Code, any High Court not being the Court of a Judicial
Commissioner may make such rules not inconsistent with the Letters Patent or order or other law
establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it
shall think fit, and nothing herein contained shall affect the validity of any such rules in force at
the commencement of this Code.
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ISSUES RAISED
ISSUE: 1
WHETHER THE SUIT FILED AGAINST VAMAZOM IS MAINTAINABLE
ISSUE: 2
WHETHER AN AD INTERIM INJUNCTION SHOULD BE GRANTED IN FAVOUR OF
VIASHARE
ISSUE: 3
WHETHER THE SOFTWARE VIOLATES RIGHT TO PRIVACY OF CITIZENS
ISSUE: 4
WHETHER THE PATENT GRANTED TO VIASHARE IS VALID
ISSUE: 5
WHETHER PATENT SHOULD BE GRANTED TO VAMAZOM’S SOFTWARE
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STATEMENT OF FACTS
BACKGROUND
Indiva is a country with a population of around 100 million people. It is the Democratic Sovereign
Republic with its own Constitution and Laws. Indiva is a developing country with a growing economy
that is moving towards digitalization. There is still a lot of scope for progressive reforms in the sphere
of Cyber Laws and IPR Laws in Indiva.
GRANT OF PATENT TO VIASHARE

ViaShare, a software company based in Delica (Capital Region of Indiva), was granted patent
protection on its technology for managing Internet affiliate programs on 5 January 2020. When a
piece of software is placed on a merchant’s site, it gives ViaShare the ability to track a user's 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. A commission, payable to the referring site, is then
generated when a user clicks on one of these “affiliate links” or banner ads, and then purchases
something from the merchant’s site.
The significance of the ViaShare patent is that it may be given the right to block anyone from using
such an arrangement of links between sites with commission payments. At the same time, there are
certain terms and conditions as a part of the standard agreement clause which the users have to accept
while downloading the software. A Standard Privacy Policy is uploaded on the referring websites and
Viashare had a standard security framework that they followed to protect user data.
CYBER ATTACK
In a major Cyberattack by an anonymous source, all the user data stored by ViaShare based on
consumer behaviour and personal details were leaked on 5th January 2021. This resulted in many
people getting fraudulent emails and frivolous calls. Shortly after this attack, Indiva Cyber Cell
(further referred to as Cyber Cell) revealed that a huge chunk of user data was also found “active” on
the dark web. The Cyber Cell made attempts to remove the user data and provide protection.
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PUBLICATION OF VAMAZOM’S PATENT APPLICATION

Vamazom, a Multinational Company dealing with B2C retail through its website Vamazom.com, got
a patent application published on 5 February 2021. The published patent application was similar to
ViaShare’s granted patent but had structural/hardware limitations over the patent for privacy
enhancements. Signing in with user credentials and details to Vamazom’s website is required for the
affiliate link to be operable.
PRE-GRANT OPPOSITION BY VIASHARE

ViaShare Corporation has filed a Pre-Grant opposition before the Patent office against the application
of Vamazom contending that their company has already been granted the Patent right of such software
in India and that Vamazom is attempting to get a similar software patented.
INFRINGEMENT OF VIASHARE’S PATENT

Through Vamazom’s software, the referring website started receiving a commission of up to 15 per
cent of the sale price for books that are sold this way and another 5 per cent on anything else purchased
through the affiliate link. The software of Vamazom is in the public domain, as it is being used for
commercial purposes.
SUIT FOR INFRINGEMENT FILED BEFORE HIGH COURT OF DELICA

Hence, Viashare has approached the Hon’ble High Court of Delica for an ex-parte interim injunction
against Vamazom’s usage of software in question and filed a Suit for Infringement of its patent.
LETTER BY UTILITY LEGAL FOUNDATION

“Unity Legal Foundation” which is a non-profit organization working for the protection of
Consumers’ Rights and Privacy in the time where business corporations are trying to encroach upon
personal information of consumers by monitoring their activities, has addressed the letter to the Chief
Justice of High court of Delica expressing their concern about the recent breach of Right to Privacy
of Citizens of Indiva and seeking action of the Hon’ble High Court against the grant of patent to these
types of software.
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SUMMARY OF ARGUMENTS
ISSUE: 1
It is most humbly submitted before the Hon’ble High Court of Delica that the suit filed by ViaShare
against Vamazom is maintainable as the Suit for the infringement is instituted because the patent
protection was granted to Viashare on technology for managing Internet affiliate programs and the
patentee has an exclusive right to prevent third parties, who do not have consent, from the act of
making, using or any other purposes of the product or process.
Further, action for the infringement of a patent can be instituted in High court having Orginal Civil
jurisdiction provided that the applicable pecuniary thresholds are satisfied within the period of
limitation, which is 3 years as prescribed in the Limitation Act, 1963. Hence, the Plaintiffs has Locus
Standi and this Hon’ble Court has jurisdiction to entertain the instant matter.
ISSUE: 2
VIASHARE
It is most humbly submitted that Interim Injunction shall be granted in the favor of Viashare as there
is Prima Facie case of Infringement of the patent as the software of the Vamazom is in the public
domain and it is being used for commercial purposes exploiting Viashare’s Patent. The balance of
convenience is in favour as in the preliminary stage, amendments/changes can be suggested by the
controller in the first instance. Moreover, the application is not crystalized/sealed and can even be
rejected at the merit of the pre-grant opposition. Further, interim Injunction if not granted in the
favour, then the remedy by damages would be inadequate, waiting till the completion of the suit
would not reflect the position in which the plaintiff would have been if there had been no
infringement.
ISSUE: 3
WHETHER THE SOFTWARE VIOLATES RIGHT TO PRIVACY OF CITIZENS
It is humbly submitted that the software doesn’t violate the right to privacy of the citizens and Union
of Indiva as the information is collected for a lawful purpose connected with a function or activity of
the body corporate and the collection of such information is considered necessary for that purpose.
Further, there is no negligence in implementing and maintaining reasonable security practices on the
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part of Viashare. Further, the law mandates to upload Privacy policy and acquire consent from the
users. There are certain terms and conditions as a part of the standard agreement clause which the
users have to accept while downloading the software. A Standard Privacy Policy is uploaded on the
referring websites and Viashare has a standard security framework that they followed to protect user
data.
Further, there is no specific legislation enacted primarily for data protection and the IT Rules apply
only to a limited scope of sensitive personal data.
ISSUE: 4
It is most humbly submitted that the patent granted to ViaShare on its technology for managing
Internet affiliate programs is valid as the technology for managing Internet affiliate programs is novel
and involves an inventive step. The technology can monitor user data and provide relevant banner-
Ads following customer preference. Further, ViaShare software has an interface that can block
anyone from using such an arrangement of links between sites with commission payments.
Further, software programs are patentable under the Patents Act, 1970. The software of Viashare is
not software per se and it is a system that in a way provides user service. Hence doesn’t fall under
the category of section 3(k) of the Patents Act, 1970.
Further, no pre-grant opposition / post-grant opposition or Counterclaim was filed. The burden on
Defendant is greater because there was no opposition, pre-grant or post-grant, to the Plaintiff's patent.
ISSUE: 5
It is most humbly submitted that patent should not be granted to Vamazom’s software as there is a
lack of novelty. Vamazom’s software is anticipated by previous publication and by prior claiming.
Thus, it lacks novelty. Further, there publication of the invention before the priority date and all the
features of ViaShare patent claim are attacked. At the same time prior claim of an invention by
ViaShare. Moreover, the software of Vamazom has existing state of the prior art and the published
material, and it possible for a normal but unimaginative person skilled in the art to discern the steps
disclosed in the patent based on the general common knowledge of the art at the priority date of the
patent. Thus, the software is obvious and lacks an inventive step.
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WRITTEN PLEADINGS
ISSUE: 1
It is most humbly submitted before the Hon’ble High Court of Delica that the suit filed against
Vamazom is maintainable as [1.1] the Suit for the infringement is instituted because the patent
protection was granted to Viashare on technology for managing Internet affiliate programs and there is
[2.1] prima facie infringement of the patent by Vamazom (Issue 2) and hence, [1.2] action for the
infringement of a patent can be instituted in High court having jurisdiction [1.3] within the period of
limitation.
It is submitted that the plaintiff who is the patentee has the locus standi to file the suit for the
Infringement which is an exclusive right available as a course of remedy when there is infringement,
and the suit is instituted before an appropriate forum i.e., High Court of Delica.
[1.1] SUIT INSTITUTED FOR THE INFRINGEMENT OF PATENT PROTECTION

1. It is submitted before the Hon’ble High Court that on 5 January 2020, ViaShare was granted
patent protection on its technology for managing Internet affiliate programs.1 It is submitted that
Patentee has the right to institute proceedings for the enforcement of a patent that has been sealed2.
Further, the patentee has an exclusive right to prevent third parties, who do not have consent, from
the act of making, using or any other purposes of the product or process in India3.
2. It is urged that the Patents Act is a complete code that provides for the protection of rights of both
the patentee and third parties (including the general public). As a result, in respect of a valid
patent, the patentee is free to file a suit for infringement and seek necessary relief towards the
protection of his rights as provided under sections 48 and 108 of the Act.4
3. Therefore, this suit is instituted before this Hon’ble court as there is an infringement of the patent
and the act provides a remedy to file a suit either before the district or High court.
1
Para-2, Page 1, MOOT PROBLEM.
2
Section 24, Patents Act, 1970.
3
Section 48, Patents Act, 1970.
4
Bayer Corporation & Ors. v. UOI, 2009 SCC OnLine Del 2469.
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COURTS VIS-À-VIS WHEN PRIMA FACIE INFRINGEMENT

4. It is humbly submitted in a plethora of judgements the court held that the question of infringement
of a patent is a mixed question of law and facts. The infringement of a patent may be done in a
number of ways, one of which is by using the patent or any colourable imitation5. Further, Prima
facie proof of validity is different from prima facie proof of infringement6 and it is well-settled
law is that the grant of patent ought to be given some weight and significance while considering
the question of prima facie case.7
5. It is submitted that in Bajaj Auto Limited v. TVS Motor Company Limited8, it was held that once a
patentee files a suit for infringement based on the patent granted to him, it ought to be prima facie
presumed to be valid until the same is set aside in the manner known to law either by revocation
under any one of the grounds under section 64 or in any other manner.
6. Therefore, while deciding the issue of maintainability courts have to inspect different elements of
the claim and should not cross the threshold by inspecting the validity of the patent itself. Further,
weight and significance have to be given to the patent which is granted and edge has to be assumed
when a patent is not challenged either in pre/post-grant opposition. Moreover, patent prima facie
presumed to be valid until the same is set aside in the manner known to law.
QUESTION OF VALIDITY AND COUNTER-CLAIM
7. In Standipack Private Ltd v. Oswal Trading Company Ltd.9 the court has invariably held that
where the validity of the patent has been challenged or a specific counterclaim has been raised,
the courts will not interfere at the interim stage.
8. In F. Hoffman-La Roche Ltd. v. Cipla Ltd.,10 it was held that the act does not suggest that there is
a per se rule that a granted patent is not presumed to be valid. Rather, the legal position is that the
registration of the patent does not guarantee its resistance to subsequent challenge, clearly noting
that a granted patent may be found to be invalid only if the defendant raises a credible challenge
to the patent.
5
James Lewis Kraft v. Oliver Kenneth McAnuit, AIR 1931 PC 279; The Bombay Agarwal Co. Akola v. Ramchand Diwanchand,
AIR 1953 Nag 154; Sheo Ratan Singh v. Rajendra Singh, AIR 1925 Oudh 652.
6
NRDC Co. v. DCM Ltd., AIR 1980 Delhi 132.
7
Salzer Electronics Limited v. S.G.Controls & Switchgear, 2014 SCC OnLine Mad 1415; Gandhimathi Appliances Ltd. v. L.G.
Varadaraju, 2001 (1) CTR 459.
8
2008 (36) PTC 417 [Mad].
9
1999 PTC 479.
10
159 (2009) DLT 243 (DB).
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9. In Strix Limited v. Maharaja Appliances Ltd11., it was held “In order to raise a credible challenge
to the validity of a patent, even at an interlocutory stage, the Defendant will have to place on record
some acceptable scientific material, supported or explained by the evidence of an expert, that the
Plaintiffs patent is prima facie vulnerable to revocation. The burden on the Defendant here is
greater on account of the fact that there was no opposition, pre-grant or post-grant, to the Plaintiff's
patent.”
10. It was held in K. Ramu v. Adyar Ananda Bhavan & Mutha Lakshmi Bhavan 12, that in a suit for
infringement of a patent, in which the defendant files a counter-claim for revocation, the onus of
showing that the patent granted to the Patentee is prima facie invalid is upon the defendant.
11. Therefore, the right which is conferred on the patentee in respect of the product and in respect of
the process is an exclusive right to prevent third parties from using or selling etc. Assuming
without conceding that there is no presumption of validity of patent but the same is irrelevant to
the maintainability of the suit for infringement13.
[1.2] ACTION FOR THE INFRINGEMENT CAN BE INSTITUTED IN THE HIGH COURT
12. It is humbly submitted that in Section 19 of the Civil Procedure Code and also in a plethora of
judgments it was held that the patentee can file the case in the place of his residence or the place
where he carries out his business or where the cause of action arises14. Section 104 of the Act
provides that a suit for the infringement shall not be instituted in any court inferior to a District
court having jurisdiction to try the suit. In appropriate cases, the High Court has Original
Jurisdiction15.
13. Further, it is submitted that Intellectual property law makes a departure from certain provisions of
the Code of Civil Procedure, which lays down that a suit must be filed in the lowest court, which
is competent to try it16. Further the High Courts of Delhi17, Bombay18, Calcutta19 and Madras
11
MIPR 2010 (1) 181.
12
MIPR 2007 (1) 352; Standipack Pvt. Ltd. and Ors. v. Oswal Trading Co. Ltd., AIR 2000 Delhi 23.
13
Hindustan Unilever Limited v. Eureka Forbes Limited, 2019 SCC OnLine Del 7442.
14
M/S. Kusum Ingots & Alloys Ltd v. Union of India, 2004 (3) CTC 365; Pfizer Products Inc. v. Rajesh Chopra, (2006) 32 PTC
301; L.G. Corporation and Anr. v. Intermarket Electroplasters (P) Ltd. and Anr., (2006) 32 PTC 429; S. Oliver Bernd Freier GmbH
& Co. K.G. v. Karni Enterprises and Anr., (2006) 33 PTC 574.
15
B.L. Wadehra, Intellectual Property Law Handbook pg. 68, 2 nd Edition (2000); Section 104, Patents Act, 1970.
16
Avinash Shivade, LexisNexis Intellectual Property Manual pg. 344, (2011).
17
Novartis Ag & Anr v. Cipla., (2015) 216 DLT 689; Telemecanique & Controls (I) Limited v. Schneider Electric Industries, SA
(2002) (24) PTC 632 (Del).
18
Pritikiran Rajendra Katole v. Harsha Ravindra Katole, AIR 2014 Bombay 2.
19
TC Limited v. Godfray Phillips India Ltd., AIR 2014 Calcutta 19.
Page | 14
exercise original jurisdiction for patent infringement actions that are within their pecuniary
jurisdiction, as prescribed under the relevant rules20.
14. It is submitted that by virtue of powers conferred on High Courts under Section 15821 Rules are
framed in this regard and Under Section 129 of the CPC, the High Court is empowered to make
Rules to regulate the exercise of original civil jurisdiction. It is further submitted that exercising
the said power, the Delhi High Court has notified the Delhi High Court (Original Side) Rules,
2018 which apply to all original side suits.
15. Therefore, an Infringement action can be brought directly before these High Courts provided that
the applicable pecuniary thresholds are satisfied and even when the rights of the patentee are
allegedly infringed.
16. It is submitted that District Judge at the very moment the counterclaim stood filed in the Court,
ceases to have any jurisdiction to deal with the suit or any application arising out of the same or
relating thereto22.
17. Arguendo, the Validity of patent granted to Viashare is a moot issue23 and a counter-claim for
revocation of the patent is made by the defendant and hence the suit, along with the counter-claim,
shall be transferred to the High Court for decision.
[1.3] PERIOD OF LIMITATION.
18. It is humbly submitted that The Patents Act, 1970 empowers the patentee to file a suit in case there
is an infringement of his exclusive patent rights. In order to file a suit, the limitation period as
specified under the Act24 is 3 years within the infringement of the patent rights.
ISSUE: 2
VIASHARE?
It is most humbly submitted before the Hon’ble High Court of Delica that Interim Injunction shall
be granted in the favor of Viashare as the factors for granting ad interim injunction which is [2.1]
Prima Facie case of Infringement; [2.2] Balance of convenience in favour of Viashare and [2.3]
Irreparable damages to the Patentee are present in the instant matter.
It is submitted that the origin of the above-mentioned factors may be sourced to a celebrated English
20
Delhi High Court Patent Rules, 2020.
21
The Patents Act, 1970.
22
Lambda Eastern Telecommunication v. Acme Tele Power Private Ltd., 2008 SCC OnLine Utt 5.
23
Issue No. 3, Page- 3, MOOT PROBLEM.
24
Limitation Act, 1963.
Page | 15
decision in the case of American Cyanamid Co. v. Ethicon Ltd25. Further Injunction can be granted
as a relief which can be given to the court if the above-mentioned factors are satisfied26 and Order-
39, Rule-2 of CPC27, along with various precedents28 reiterates these factors.
In Morgan Stanley Mutual Fund v. Kartick Das 29, Ad-interim injunctions only reflects that the court
either passed order ex-parte or even if the defendant is present, he was not heard fully for want of
pleading etc. Further relief by way of interlocutory injunction is granted to mitigate the risk of
injustice to the plaintiff during the period before that uncertainty could be resolved30.
In Dalpat Kumar & Anr. v. Prahlad Singh & Ors.31, the Supreme Court observed as under: “The
phrases `prima facie case’, `balance of convenience’ and ‘irreparable losses’ 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 submitted that an injunction is a judicial process and temporary injunction is a mode of granting
preventive relief by the court at its discretion32 and the object of the interlocutory injunction is to
protect the plaintiff against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in his favour at
the trial. The need for such protection has, however, to be weighed against the corresponding need to
the defendant to be protected against injury resulting from his having been prevented from exercising
his own legal rights for which he could not be adequately compensated33.
[2.1] PRIMA FACIE CASE OF INFRINGEMENT OF THE PATENT
19. It is submitted that the pith and marrow of the invention is the essence of the invention which is
taken and reproduced in the infringed article even by incorporating a colourable variation of it
within the invention, has resulted in infringement.
20. It is submitted 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 Plaintiff obtaining the relief
at the conclusion of the trial on the basis of the material placed before the Court34.
25
1975 AC 396.
26
Section 108, The Patents Act, 1970.
27
Code of Civil Procedure, 1908.
28
Seema Arshad Zaheerv v. Municipal Corporation of Greater Mumbai, (2006) 5 Scale 263; Prakash Singh v. State of Haryana
2002 (4) Civil L.J.71 (P.H.); Shanti Kumar Pandey v. Shakuntala Devi, (2004) 1 SCC 438.
29
(1994) 4 SCC 225.
30
Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727.
31
AIR 1993 SC 276.
32
State of Orissa v. Madan Gopal, 1952 AIR 12.
33
Supra Note 30.
34
Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co. Ahmedabad, 1995(5) SCC 545.
Page | 16
21. It is submitted that the burden is on the plaintiff to satisfy the court by leading evidence or
otherwise that he has a prima facie case in his favour.35 But, in attempting to mimic that exercise
in determining whether a prima facie case exists, the court must not conduct some sort of mini-
trial36. Further, the courts stressed finding the ‘substance’ of the invention, ignoring certain
omission or addition of parts37.
22. It is submitted that to find out whether the patent has been infringed the patented article or process
has to be compared with the infringing articles or process and unessential features in the infringing
article or process are of no account and if the infringing goods are made with the same object in
view which is attained by the patented article, then the minor variation does not mean that there is
no piracy and a person is guilty of infringement if he makes what is in substance the equivalent of
the patented article and some trifling and unessential variations has to be ignored38.
23. While the court had not used the ‘Doctrine of Equivalence’ explicitly, it had found that the pith
and substance of the invention must be paid heed to and that the decision shall not get lost in
detailed specifications39.
24. It is finally submitted that even the doctrine of equivalents which applies to all the individual
elements of the claims and not the claimed invention as a whole, it is necessary to prove that every
element of the patented invention, or its substantial equivalent, is present in the accused product
or process40.
25. Therefore, while factually analyzing the case it is clear that the alleged product and the patented
product had the same ‘usage/purpose’ as the software of Vamazom also manages Internet affiliate
programs41’; has the same ‘nature of material’ as the software also use internet affiliate links
through affiliate website42’, and also works on the ‘same principle’ by providing Ad Banners and
commissions43’. Hence, there is no substantial difference in the constructional and functional
aspect of the product, it can be said that the mere changes in the main structure of the body by
adding Structural/Hardware limitations for technical enhancement44 alone do not indicate the
presence of a new invention and hence there is an infringement of the patent.
35
Uttara Bank v. Macneill & Kilburn Ltd., 33DLR (AD) 298.
36
Anand Prasad Agarwalla v. Takeshwar Prasad and Ors., (2001) 5 SCC 568.
37
Bajaj Auto Limited v. TVS Motor Company, (2009) Supreme court case 797.
38
Raj Parkash v. Mangat Ram Chowdhary, AIR 1978 Del 1.
39
Id. at 39, Dr. B L Wadehra, Law Relating to Intellectual Property, pg. 50, (2020).
40
Ravi Kamal Bali v. Kala Tech & Ors., 2008(110) Bom LR 2167.
41
42
Para-3, Page-1, MOOT PROBLEM.
43
44
Page | 17
BURDEN OF PROOF & VULNERABILITY

26. It is submitted that the Apex court in Marin Burn Ltd. v. R.N. Banerjee45 held that 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. 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.
27. Further, it is submitted that in Helifix Ltd. v. Blok-Lok Ltd.46 where courts held “in resisting a
preliminary injunction, however, one need not make out a case of actual invalidity. ‘Vulnerability’
is the issue at the preliminary injunction stage, while validity is the issue at trial. The showing of
a substantial question as to invalidity thus requires less proof than the clear and convincing
showing necessary to establish invalidity itself.” This principle was upheld in a plethora of Indian
cases47. Further, the court had also stressed the fact that someone should not exploit a patented
product or process, just by making an insignificant variation in it48.
28. Therefore, the material placed on the record before the Hon’ble High Court proves a prima-facie
case that the patent of the Viashare was infringed. Further, the question of vulnerability is made
out as the product launched by Vamazom is in the market49 thereby thriving on Plaintiff’s already
existing mislaying in the form of cyber-attack. Hence, the safest conclusion can arrive in favour
of the plaintiff. Moreover, the onus on the plaintiff is less as he need not prove the hilt.
[2.2] BALANCE OF CONVENIENCE IN FAVOR OF VIASHARE

29. It is Humbly submitted that ‘Balance of convenience’ means the comparative mischief or
inconvenience to the parties. The inconvenience to the plaintiff, if the temporary injunction is
refused, would be balanced and compared with that to the defendant if it is granted 50. If the scale
of inconvenience leans to the side of the plaintiff, then the interlocutory injunction should be
45
1958-I L.L.J. 247.
46
208 F.3d 1339aj
47
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511; Standipack Pvt. Ltd. v. Oswal Trading
Co. Ltd., AIR 2000 Delhi 23; Bilcare Ltd. v. Amartara Pvt. Ltd., 2007 (34) PTC 419 (Del); Surendra Lal Mahendra v. Jain
Glazers, (1979) 11 SCC 511; Beecham Group Ltd. v. Bristol Laboratories Pty Ltd., (1967-68) 118 CLR 618; Australian
Broadcasting Corporation v. O'Neill, (2006) 229 ALR 457.
48
Beecham Group Limited v. Bristol Laboratories Private Limited., 1967 (16) RPC 406.
49
50
Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336; Parasram Harnandrai v.
Chitandas, AIR 1952 Cal 82; State of Punjab v. A.K Raha (Engineers) Ltd., AIR 1964 Cal 418 (DB); Sanjay Trading Company v.
Dal Chemical N.V, AIR 1978 Cal 397.
Page | 18
granted51. The Court must weigh one need against another and determine where the balance of
convenience lies52.
30. It is submitted that the court in deciding the balance of convenience may take into consideration
the fact that if no interim injunction was granted and the defendant proceeded with the marketing
of his product which will be an extremely valuable bridgehead or springboard for him if he can
elect to take a License of right which would be entitled to in a few years of time to continue
developing this market, instead of having him start from the scratch like others.53
31. Therefore, the balance of convenience is in the favor of the plaintiff as the comparative mischief
along with weighing the needs make it abundantly clear as the application of the Vamazom is at a
preliminary stage and amendments/changes can be suggested by the controller in the first instance.
Moreover, the application is not crystalized/sealed and can even be rejected at the merit of the pre-
grant opposition. It’s the convenience of the plaintiff alone which is under the threat in the instant
case.
[2.3] NON-GRANT OF INJUNCTION CAUSES IRREPARABLE DAMAGES

32. It is submitted that ‘Irreparable injury’ means such injury which cannot be adequately remedied
by damages. The remedy by damages would be inadequate if the compensation ultimately payable
to the plaintiff in case of success in the suit would not place him in the position in which he was
before the injunction was refused54.
33. In Merck Sharp & Anr. v. Glenmark Pharmaceuticals55 it is contended that once the defendant
launches its product it will adversely affect the plaintiff and thus an ad-interim injunction be
granted in favour of the plaintiffs and against the defendants. Moreover, an irreparable injury,
however, does not mean that there must be no physical possibility of repairing the injury but means
only that the injury must be a material one, namely one that cannot be adequately compensated by
way of damages56.
34. It is submitted that without the interference of the court would result in irreparable injury to the
party seeking relief and that there is no other remedy available to the party except one to grant an
51
Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336; Antaryami Dalabehera v. Bishnu
Charan Dalabehera, 2002 I OLR 531; Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd., 2005 (1) CHN 582.; Anwar Elahi v.
Vinod Misra ,1995 IVAD Delhi 576; Indian Overseas Bank, Madras v. Chemical Construction Co., (1979) 4 SCC 358; Baburam
Agarwalla v. Jamunadas Ramji & Co., AIR (38) 1951 Calcutta 239.
52
Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727.
53
American Cyanamid v. Ethicon, [1975] RPC 513.
54
Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336.
55
2015 SCC OnLine Del 8227.
56
Ibid.
Page | 19
injunction and he needs protection from the consequences of apprehended injury or

dispossession57. Further, “a patentee, even after succeeding in the suit, in the absence of any
interim order, is entitled only to profits earned by the defendant and which do not reflect the profits,
which the plaintiff would have earned if there had been no infringement”.58
35. It is submitted that in Sterlite Technologies Ltd. v ZTT India Ltd,59 the court held that the life of a
patent is limited and considering the time taken in determination, whether there is an infringement
of patent, non-grant of interim injunction often results in, the defendant, even if ultimately found
to have infringed the patent, till the said determination, continuing to reap fruits of infringement.
36. Therefore, the Software of the Vamazom is already in the market60 and interim Injunction if not
granted in the favour, then the remedy by damages would be inadequate in this instant case as the
life of a patent is limited and waiting till the completion of the suit would not reflect the position
in which the plaintiff would have been if there had been no infringement.
ISSUE: 3
WHETHER THE SOFTWARE VIOLATES RIGHT TO PRIVACY OF CITIZENS?
It is most humbly submitted that the software doesn’t violate the right to privacy of the citizens and
Union of India as [3.1] the information is collected for a lawful purpose connected with a function or
activity of the body corporate and the collection of such information is considered necessary for that
purpose and [3.2] No negligence in implementing and maintaining reasonable security practices on the
part of Viashare. [3.3] Further, a Privacy policy and consent from the users are acquired and Finally,
there is [3.4] no specific legislation enacted primarily for data protection.
It is submitted that the ViaShare is a body corporate as it presently stands in the act, this peculiar
definition will extend to public and private limited companies 61. Hence, the act provides protection to
sensitive personal data against the body corporate, i.e., companies, sole proprietorships or associations
that collect or process sensitive personal data62.
57
Dalpat Kumar & Anr. v. Prahlad Singh & Ors, AIR 1993 SC 276.
58
Sterlite Technologies v. ZTT India Private, 2019 SCC OnLine Del 9124.
59
2019 SCC OnLine Del 9124.
60
61
W. O. Holdsworth v. State of UP AIR 1957 SC 887; Duli Chand v. Mahabir Pershad, AIR 1984 Del 145.
62
Asang Wankhede, Data Protection in India and the EU: Insights in Recent Trends and Issues in the Protection of Personal Data,
2 Eur. Data Prot. L. Rev. 70, 79 (2016).
Page | 20
[3.1] LAWFUL PURPOSE CONNECTED WITH A FUNCTION OR ACTIVITY WHICH IS

NECESSARY
37. It is submitted that Rule 5 of the IT Rules63 prescribes that no body corporate or any person on its
behalf shall collect sensitive personal data or information unless the information is collected for a
lawful purpose connected with a function or activity of the body corporate64.
38. Therefore, Viashare’s core data protection principle is fair and it lawfully processes personal
information. Further, the collection of such information is considered necessary for the functioning
of the internet affiliate program.
[3.2] NO NEGLIGENCE IN IMPLEMENTING AND MAINTAINING REASONABLE

SECURITY PRACTICES ON PART OF VIASHARE.
39. It is submitted that Section 43A65 creates a liability on a body corporate (including a firm, sole
proprietorship or other association of individuals engaged in commercial or professional activities)
which possesses, deals or handles any sensitive personal data or information in a computer
resource that it owns, controls or operates to pay damages by way of compensation, to the person
affected if there is any wrongful loss or wrongful gain to any person caused because of the
negligence in implementing and maintaining reasonable security practices and procedures to
protect the information of the person affected. Further, Under Rule 8 “While handling such
personal information or sensitive personal data or information, the corporate body is required to
comply with reasonable security practices and procedures.”
40. In the event of an information security breach, the body corporate or a person on its behalf is
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 program and information security policies66
41. Therefore, the cyberattack by an anonymous source67 and data breach were not because of
negligence on the part of Viashare68. Moreover, it is abundantly clear because even the Cyber Cell
of the state making attempts to remove the user data and provide protection was inaffective.69
63
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules,
2011; UK Data Protection Act, 1998, Schedule 1, Part 1, Principles 2 and 3.
64
Binoy Viswam v. Union of India And Others, (2017) 7 SCC 59.
65
Information Technology Act, 2000.
66
Rule 8, Information and Technology Act, 2000 and Information Technology (Reasonable Security Practices and Procedures and
Sensitive Personal information) Rules, 2011
67
68
CLARIFICATION-9, PHASE-2.
69
Page | 21
[3.3] PRIVACY POLICY AND CONSENT

42. It is submitted that publishing of privacy policy and seeking the consent of the users is mandated
by the Law and under Rule 470, which mandates that corporate bodies or any person who on behalf
of the body corporate, collects, receives, possesses, stores, deals or handles information of provider
of information should provide for a privacy policy for handling of or dealing in personal
information including sensitive personal data or information and ensure that the same are available
for view by such providers of information who have provided such information under a lawful
contract. Such policy shall be published on the website of the body corporate or any person on its
behalf and shall provide for— a) clear and easily accessible statements of its practices and policies;
b) type of personal or sensitive personal data or information collected under rule 3; c) purpose of
collection and usage of such information; d) disclosure of information including sensitive personal
data or information as provided in rule 6; e) reasonable security practices and procedures as
provided under rule 8.
43. It is submitted that while collecting information directly from the person concerned, the body
corporate or any person on its behalf shall take such steps as are, in the circumstances, reasonable
to ensure that the person concerned is having the knowledge71 of the fact that the information is
being collected; the purpose for which the information is being collected; the intended recipients
of the information; and the name and address of — (i) the agency that is collecting the information;
and (ii) the agency that will retain the information.
44. Therefore, Viashare collecting such sensitive personal data obtained consent from the provider of
said data72, which is only be collected for a lawful purpose and is connected to the working of the
body corporate. The data provider is made aware of the fact that such information is being
collected73
[3.4] NO SPECIFIC LEGISLATION ENACTED PRIMARILY FOR DATA PROTECTION
45. It is submitted that India’s regulatory mechanism for data protection and privacy is the Information
Technology Act, 2000 and its corresponding Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
46. It is submitted that in Justice K.S. Puttaswamy (Retd.) v. Union of India74. It was held that “to
make the right to privacy meaningful, it is the duty of the state to put in place a data protection
70
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal information) Rules, 2011.
71
Rule 5, Information and Technology Act, 2000 and Information Technology (Reasonable Security Practices and Procedures
and Sensitive Personal information) Rules, 2011
72
73
74
2017 (10) SCALE 1; Gobind v. State of Madhya Pradesh, (1975) SCC (Cri) 468.
Page | 22
framework which, while protecting citizens from dangers to informational privacy originating
from state and non-state actors, serves the common good. It is the understanding of the state’s duty
that the Committee must work with while creating a data protection framework.” Further, a
committee led by former Supreme Court judge B.N. Srikrishna to demarcate “key data protection
issues” and on the basis of the same, suggest a draft data protection bill.75
47. Therefore, there is still a lot of scope for progressive reforms in the sphere of cyber laws and IPR
Laws in Indiva.76 The IT Rules apply only to a limited scope of sensitive personal data, Further
the Act was not enacted with the primary intent of providing data protection.
ISSUE: 4
It is most humbly submitted before the Hon’ble High Court of Delica that the patent granted to ViaShare
on its technology for managing Internet affiliate programs is valid as [4.1] the technology for managing
Internet affiliate programs is novel and involves an inventive step, and [4.2] software programs are
patentable under the Patents Act, 1970; Further [4.3] no pre-grant opposition / post-grant opposition or
Counterclaim was filed.
[4.1] VALIDITY OF THE PATENT GRANTED TO VIASHARE
48. It is submitted before the Hon’ble High Court that the patent protection granted to ViaShare on its
technology for managing Internet affiliate programs on 5 January 202077, is still valid and
subsisting. The subject technology is novel and it involves an inventive step and capable of
industrial application78.
49. It is submitted that in Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries79, it has
been held that the fundamental principle of Patent Law is that a patent is granted only for an
invention that must be new and useful. That is to say, it must have novelty and utility. Further, the
75
Krishna Rajagopal, Privacy Argument Will Hit Governance, The Hindu (Aug 2, 2017, 12:43
a.m.), http://www.thehindu.com/news/national/centre-constitutes-new-panel-under-former-sc-iudge-to-prepare-draft-data-
protection-law/article19402660.ece.
76
77
78
Section 2(1)(j) & Section 2(1) (ja), The Patents Act, 1970.
79
AIR 1982 SC 1444; Thomson Brandt v. Controller of Patents and Designs, AIR 1989 Delhi 249; The Deputy Cit (Asstt) (S) v.
Mastek Limited Opponent(S), (2011) ITAT 7893; Strix Limited v. Maharaja Appliances Limited, MIPR 2010 (1) 181; Cadila
Pharmaceuticals Ltd. v. Instacare Laboratories Pvt. Ltd., 2001(21) PTC 472 (Guj); Hind Mosaic and Cement Works Another v.
Shree Sahjanand Trading Corporation, MIPR 2008 (1) 402; Godrej Soaps Ltd. And Procter & Gamble Godrej Ltd. v. Hindustan
Lever Ltd. And Others, (1993) 98 CWN 131; Bilcare Limited v. M/S. The Supreme Industries Ltd, MIPR 2007 (2) 13;
Gandhimathi Appliances Limited v. G. Varadaraju And Others, 2001 (1) CTR 459.
Page | 23
first ingredient for invention is a novelty, whether it be a product or process80. Novelty is

determined before the inventive step because the creative contribution of the inventor can be
assessed only by knowing the novel elements of the invention81.
50. It is submitted that “New invention” means any invention or technology which has not been
anticipated by publication in any document or used in the country or elsewhere in the world before
the date of filing of a patent application with complete specification, i.e., the subject matter has
not fallen in the public domain or that it does not form part of the state of the art.82
51. It is submitted that no uniform tests have been laid down to determine novelty, nonetheless, some
of the tests can be, whether the said process was previously known, used or practised in any form
or whether it was mentioned or described in any book or publication, in the country before the
claim of the patent. If not, it would be a novelty and thus an ‘invention’ under the Act83.
52. It is submitted that in Ram Narain Kher v. Ambassador Industries84, it was held that the novelty
of the invention has to be succinctly stated in the claim. Further, after establishing the novelty, an
invention is assessed for the inventive step85.
53. Therefore, the technology of the software program developed by Viashare is novel and there is no
prior publication of the invention. There was no such technology for managing Internet affiliate
programs that could monitor the user data and provide relevant banner-Ads following the customer
preference.
INVENTIVE STEP
54. It is submitted that the "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 art86.
55. It is submitted that obviousness has to be strictly and objectively judged87. To test the obviousness
the first test required to be applied is to see who is an ordinary person skilled in the art and what
80
M.C.Jayasingh v. Mishra Dhatu Nigam Limited, 2014 SCC OnLine MAD 163.
81
Manual of Patent Practice and Procedure, The Patent Office, India, pg. 22, (2008).
82
Section 2(1)(l), Patents Act, 1970, F. Hoffmann-La Roche Ltd v. Cipla Ltd, 159 (2009) DLT 243 (DB); Novartis A.G. v. Union
of India & Ors, (2013) 6 SCC 1.
83
Thomson Brandt v. The Controller of Patents and Designs, AIR 1989 Delhi 249.
84
AIR 1976 Del 87; Blakey & Co. v. Lathem & Co., 1889 (6) RPC 184 (CA).
85
86
Section 2(1)(ja), Patents Act, 1970; Novartis A.G. v. Union of India & Ors, (2013) 6 SCC 1; Enercon India Limited v. Aloys
Wobben, (2010) IPAB 125; F. Hoffmann-La Roche Ltd v. Cipla Ltd., 159 (2009) DLT 243 (DB); Srinivasa Raja v.
Krishnamachari Ramu, (2011) IPAB 93; Glaverbel S.A. v. Dave Rose, 2010 (43) PTC 630 (Del); Ten Xc Wireless Inc. v. Mobi
Antenna Technologies (Shenzhen) Co. Ltd., (2011) SCC OnLine Del 4648.
87
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, AIR 1982 SC 1444.
Page | 24
are its characteristics88. The invention is not considered to involve an inventive step if it is obvious
to a person skilled in the art on the date of priority89.
56. In Yahoo Inc. (Formerly Overture Service Inc.) v. Assistant Controller of Patents and Designs &
Rediff.com India Limited90, it was observed that while determining the inventive step, it is
important to look at the invention as a whole. It must be ensured that the inventive step must be a
feature that is not an excluded subject itself.
57. Therefore, the inventive step in the instant case is that the technology has the ability to monitor
user data and provide relevant banner-Ads following the customer preference. Further, ViaShare
software has an interface that can block anyone from using such an arrangement of links between
sites with commission payments.
[4.2] SOFTWARE PROGRAMS ARE PATENTABLE

58. It is submitted that the TRIPS Agreement requires that patents be available in all fields of
technology, provided that they are new, involve an inventive step and are capable of industrial
application, subject to certain limited exceptions91. Further, under the TRIPS Agreement, a
country is given the flexibility to exclude subject matter from patentability in order to maintain
public order etc.92Further, the software-related inventions should have a technical effect. Provided
that the software produces a technical effect, it is then necessary to examine whether the conditions
of patentability are fulfilled93.
59. It is submitted that in HTS v. Apple94, the court of appeal held that if the invention could solve a
problem within the computer or outside the computer, in either case, it can have a technical effect
and hence be patentable. Further, merely because the invention is implemented in software, does
not make the invention non-patentable.
60. In Ferid Allani v. Union of India & Ors.95, it is observed that 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. If the invention demonstrates a
88
F. Hoffmann-La Roche Ltd. and Anr.v. Cipla Limited, 159 (2009) DTL 243 (DB).
89
90
(2011) IPAB 106.
91
Article 27.1, TRIPS.
92
Article 27.2, TRIPS.
93
WIPO Intellectual Property Handbook, pg. 436 (2004).
94
(2013) EWCA Civ 451.
95
(2020) 81 PTC 489.
Page | 25
technical effect or a technical contribution it is patentable even though it may be based on a

computer program.
61. Further, it is submitted that software programs are patentable under the Patents Act, 1970. Under
Section 3(k)96 a mathematical or business method or a computer programme per se or algorithms
are not patentable. Further, the words ‘per se’ suggest that Section 3(k) of the Patents Act, 1970
does not completely exclude computer program from patentability. The legislative intent to attach
the suffix “per se” to a computer programme is evident by the following view expressed by the
Joint Parliamentary Committee while introducing the Patents (Amendments) Act, 2002:
“In the new proposed clause (k) the words “per se” have been inserted. This change has been
proposed because sometimes the computer programme may include certain other things, ancillary
thereto or developed thereon. The intention here is not to reject them for grant of the patent if they
are inventions. However, the computer programmes as such are not intended to be granted patent.
This amendment has been proposed to clarify the purpose.” 97 Further, the use of ‘per se’ read
along with the above extract from the report suggests that the legal position in India is similar to
the EU which also has a similar provision98.
62. It is submitted that in Telefonaktiebolaget Lm Ericsson v. Intex Technologies (India) Limited99, it
was observed that any invention which has a technical contribution or has a technical effect and is
not merely a computer program per se is patentable. Further, in light of the patent laws and
guidelines published by the Patent Office for examination of software patents/computer-related
inventions (CRIs), software patents can be applied by way of a combination of hardware and
software features, which are novel, inventive and possess industrial applications.
63. 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, 2013;
the second document is described as Guidelines, 2016 and the one issued in 2017 is termed
`Revised Guidelines’.Further, “Technical Effect” is defined as a solution to a technical problem,
which the invention is taken as a whole, tends to overcome100.
64. In Accenture Global Service GMBH v. Assistant Controller of Patents & Design and the Examiner
of Patents101, after analyzing the inventions on merits, the Patent Office observed that the invention
96
Patents (Amendment) Act, 2002 (Act 38 of 2002); The Patents Act, 1970.
97
Report of the Joint Committee, The Patents (Second Amendment) Bill, 1999, Clause 4, 19th December, 2001.
98
Article 52, European Patent Convention.
99
2015 SCC OnLine del 8229.
100
Guidelines for Examination of Computer Related Inventions (CRIs), 2013, pg.10.
101
OA/22/2009/PT/DEL.
Page | 26
is not software per se, it is rather a system having web-services and software and thus, is not falling
in the category of section 3(k).
65. Therefore, the software of Viashare is not software per se and it is a system that in a way provides
user service. Hence doesn’t fall under the category of section 3(k).
66. It is submitted that in 2009, Facebook sought a patent on a method "for generating dynamic
relationship-based content, personalized for members of the web-based social network" and when
objections were raised, it contended that section 3(k) was not applicable in this case because the
invention "implements a technical process and has a technical effect" and further went on to
explain the intricacy of the method and thus it was granted the patent102.
67. Therefore, the software technology for managing Internet affiliate programs of ViaShare is a
patentable invention under the Patents Act, 1970 and the software of ViaShare provides only the
relevant banner-Ads in accordance with the consumer preference which is its technical effect.
[4.3] NO PRE-GRANT OPPOSITION OR POST-GRANT OPPOSITION AND

COUNTERCLAIM
68. It is humbly submitted that The Patents Act, 1970 empowers a person to oppose the grant of a
patent on various reasonable grounds, by giving notice of such opposition to the Controller of
patents103. Further, the patent was granted to ViaShare on 5th January 2020 and there was no pre-
grant opposition or post-grant opposition filed against the validity of the patented software
program
69. In Dr Aloys Wobben And Another v. Yogesh Mehra And Others104, the Supreme Court observed
that if no notice of opposition is preferred, within one year of the date of publication of the grant
of a patent, the grant would be deemed to have crystallized.
70. It is submitted that In Strix Limited v. Maharaja Appliances Ltd105 it was held that the burden on
Defendant is greater on account of the fact that there was no opposition, pre-grant or post-grant,
to the Plaintiff's patent. Further, In Garware-Wall Ropes Ltd. v. Techfab India and 5 Ors.106, it
was contended that in a suit for infringement of a patent, in which the defendant files a counter-
claim for revocation, the onus of showing that the patent granted to the Patentee is prima facie
invalid is upon the defendant.
102
Ajaysharma, Software Patentability: In Indian Context, Legal Service India E-Journal,
http://www.legalserviceindia.com/legal/article-9-software-patentability-in-indian-context-.html
103
104
(2014) 15 SCC 360; Cde Asia Limited v. Jaideep Shekhar & Anr., CS (COMM) 124/2019.
105
MIPR 2010 (1) 181.
106
2009(39) PTC 297(Guj) (DB); Standipack Pvt. Ltd. and Ors. v. Oswal Trading Co. Ltd., AIR 2000 Delhi 23.
Page | 27
ISSUE: 5
It is most humbly submitted before the Hon’ble High Court of Delica that patent should not be granted
to Vamazom’s software as there is [5.1] lack of novelty; [5.2] Publication of invention before priority
date; [5.3] Prior claiming of the invention in other specification and [5.4] the software is obvious and
lacks inventive step.
[5.1] LACK OF NOVELTY
71. It is submitted that lack of novelty is usually referred to as 'anticipation' and is determined by
factors such as prior publication, public knowledge and public use, commercialized products and
selection inventions107. Further, for a patent to qualify the test of absolute novelty, it must be
determined that it is not anticipated by previous publication and or by prior claiming108.
[5.2] PUBLICATION OF INVENTION BEFORE PRIORITY DATE

72. It is submitted that a patent application is considered to be anticipated if the invention is disclosed
in a patent or any other document which is published before the priority date of the
application109and when there are materials on record to show that there was the prior publication
of the claim, the patent claim is liable to be rejected110. Further, anticipate a patent, a prior
publication or activity must contain the whole of the invention impugned; i.e., all the features by
which the particular claim attacked is limited. In other words, the anticipation must be such as to
describe or be an infringement of the claim attacked111.
73. Therefore, the patent is granted to Viashare on 5th January 2020. Therefore, the technology
developed by Vamazom has a previous publication and it lacks novelty.
[5.3] PRIOR ART AND PRIOR CLAIMING

74. It is submitted that to establish prior claiming, it must be shown that the subject matter of a claim
in the applicant's specification forms the subject matter of a distinct claim in the cited
specification112. Moreover, when testing for anticipation if prior art exists then if by studying the
107
Pankaj Musyuni, LexOrbis, India: Novelty: An Indian Perspective, Mondaq Connecting Knowledge and People, 18 Dec. 2017,
https://www.mondaq.com/india/patent/655226/novelty-an-indian-perspective.
108
109
110
Novartis Ag. v. Adarsh Pharma and Anr., 2004 (3) CTC 95.
111
Farbewerke Hoechst Aktiengesellschaft Vormals Meister Lucius v. Unichem Laboratories, AIR 1969 Bom 255;
9 HALSBURY LAWS OF ENGLAND, 27, (3rd Ed)
112
Nidhi Anand, Chadha & Chadha Intellectual Property Law Firm, India: anticipation by previous publication & prior claiming,
Lexology, 26 Jan. 2018, https://www.lexology.com/library/detail.aspx?g=7e87a96f-c83c-42d3-bc3f-cdd486a12068.
Page | 28
prior art the claimed invention can be performed, the claim would be considered to be anticipated.
It can also be identified by showing the predictable result as the outcome of what is described in
the prior art, regardless of whether it would be a product or process falling within the scope of the
claim113.
75. In Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co,114 the court observed that novelty
is essential, for otherwise there would be no benefit given to the public and consequently, no
consideration moving from the patentee. [while interpreting the factor related to public knowledge
and public use. Further, the term 'Public Use' does not mean use by the public, but use in a public
manner and not secretly115. Further, to fulfil the requirement of being ‘publicly known’ as required
under sub-clauses (e) and (f) of section 64(1), it is not essential that it should be widely used to
the knowledge of the consumer. It is enough if it is known to the persons who are engaged in the
pursuit of the knowledge of the patented product or process either as men of science or men of
commerce or consumers116.
[5.4] SOFTWARE IS OBVIOUS AND LACKS INVENTIVE STEP
76. In F. Hoffmann-La Roche Ltd. and Anr. v. Cipla Limited117, it was highlighted that the test of
obviousness is that having regard to the existing state of prior art or the published material, was it
possible to a normal but unimaginative person skilled in the art to discern the steps disclosed in
the patent on the basis of the general common knowledge of the art at the priority date of the
patent118.
77. Therefore, if the patent claimed merely includes the development of some existing trade, in the
sense that it is developed as would suggest itself to an ordinary person skilled in the art, it would
fail the test of non-obviousness119. The software of Vamazom fails the test of non-obviousness
and lacks inventive-step.
113
114
(1935) 37 BOMLR 665.
115
Lallubhai v. Sankalchand, AIR 1934 Bom 407.
116
Monsanto Company v. Coramandal Indag Products (P) Ltd,1986 AIR 712.
117
159 (2009) DTL 243 (DB); G v. Teva US Court of Appeals for Federal Circuit, ORA/29/2011/PT/MUM.
118
3M Innovative Properties Company Another v. M/S. Venus Safety Health Pvt. Ltd Another, 2016 SCC OnLine Del 5232.
119
Enercon India Limited v. Aloys Wobben, (2010) IPAB 125; Baron Alderson in Morgan v. Seaward, ORA/5/2008/PT/DEL;
Halsbury Laws of England.
Page | 29
PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED; IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT MAYBE
PLEASED,
I. To Uphold the Validity of the Patent Granted to the Viashare.
II. To Grant Ad-Interim Injunction in the Infringement suit, restraining Vamazom from
Using, offering for sale and Selling the Software managing internet affiliate program.
AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE
COURT MAY DEEM FIT IN THE INTERESTS OF justice, equity and good conscience.
All of which is humbly prayed,
TC DME 409
Counsels for the Plaintiff.
Page | 30

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DELHI METROPOLITAN EDUCATION NATIONAL MOOT COURT 2021

MEMORIAL ON BEHALF OF THE PLAINTIFF

TEAM CODE: TC DME 409

4th DELHI METROPOLITAN EDUCATION NATIONAL MOOT

THE HON’BLE HIGH COURT OF DELICA

VIASHARE PVT. LTD. COMPANY

VAMAZOM PVT. LTD. COMPANY

MEMORIAL ON BEHALF OF PLAINTIFF

ISSUE 1: WHETHER THE SUIT FILED BY VIASHARE AGAINST VAMAZOM IS

58. Pfizer Products Inc. v. Rajesh Chopra, (2006) 32 PTC 301……………………………....…11

[D.] INTERNATIONAL CONVENTIONS

[F.] DICTIONARIES REFERRED

[G.] ONLINE SOURCES

MEMORIAL ON BEHALF OF THE PLAINTIFF

• POWER OF HIGH COURTS TO MAKE RULES

• SECTION 129 CPC POWER OF HIGH COURT TO MAKE RULES AS TO THEIR

MEMORIAL ON BEHALF OF THE PLAINTIFF

WHETHER THE PATENT GRANTED TO VIASHARE IS VALID

WHETHER PATENT SHOULD BE GRANTED TO VAMAZOM’S SOFTWARE

MEMORIAL ON BEHALF OF THE PLAINTIFF

GRANT OF PATENT TO VIASHARE

MEMORIAL ON BEHALF OF THE PLAINTIFF

PUBLICATION OF VAMAZOM’S PATENT APPLICATION

PRE-GRANT OPPOSITION BY VIASHARE

INFRINGEMENT OF VIASHARE’S PATENT

SUIT FOR INFRINGEMENT FILED BEFORE HIGH COURT OF DELICA

LETTER BY UTILITY LEGAL FOUNDATION

MEMORIAL ON BEHALF OF THE PLAINTIFF

MEMORIAL ON BEHALF OF THE PLAINTIFF

WHETHER THE PATENT GRANTED TO VIASHARE IS VALID

WHETHER PATENT SHOULD BE GRANTED TO VAMAZOM’S SOFTWARE

MEMORIAL ON BEHALF OF THE PLAINTIFF

[1.1] SUIT INSTITUTED FOR THE INFRINGEMENT OF PATENT PROTECTION

MEMORIAL ON BEHALF OF THE PLAINTIFF

COURTS VIS-À-VIS WHEN PRIMA FACIE INFRINGEMENT

QUESTION OF VALIDITY AND COUNTER-CLAIM

MEMORIAL ON BEHALF OF THE PLAINTIFF

MEMORIAL ON BEHALF OF THE PLAINTIFF

[1.3] PERIOD OF LIMITATION.

MEMORIAL ON BEHALF OF THE PLAINTIFF

MEMORIAL ON BEHALF OF THE PLAINTIFF

MEMORIAL ON BEHALF OF THE PLAINTIFF

BURDEN OF PROOF & VULNERABILITY

[2.2] BALANCE OF CONVENIENCE IN FAVOR OF VIASHARE

MEMORIAL ON BEHALF OF THE PLAINTIFF

[2.3] NON-GRANT OF INJUNCTION CAUSES IRREPARABLE DAMAGES

MEMORIAL ON BEHALF OF THE PLAINTIFF

injunction and he needs protection from the consequences of apprehended injury or

MEMORIAL ON BEHALF OF THE PLAINTIFF

[3.1] LAWFUL PURPOSE CONNECTED WITH A FUNCTION OR ACTIVITY WHICH IS

[3.2] NO NEGLIGENCE IN IMPLEMENTING AND MAINTAINING REASONABLE

MEMORIAL ON BEHALF OF THE PLAINTIFF

[3.3] PRIVACY POLICY AND CONSENT

MEMORIAL ON BEHALF OF THE PLAINTIFF

MEMORIAL ON BEHALF OF THE PLAINTIFF

first ingredient for invention is a novelty, whether it be a product or process80. Novelty is

MEMORIAL ON BEHALF OF THE PLAINTIFF

[4.2] SOFTWARE PROGRAMS ARE PATENTABLE

MEMORIAL ON BEHALF OF THE PLAINTIFF