Ericsson counsel: SEP verdict has ‘contributed towards shaping Indian jurisprudence’

Ericsson’s triumph at the Delhi High Court was not only an unusual case, it has set a precedent for more standard-essential patent litigation in India. Lead counsel for the smartphone manufacturer, Saya Choudhary Kapur of Singh & Singh, tells us more.

The Delhi High Court recently delivered a “truly groundbreaking” standard-essential patent (SEP) judgment favouring Ericsson, against India-based Lava International.

The Swedish smartphone manufacturer and tech company Lava had gone head-to-head in a dispute over eight of Ericsson’s patents covering 2G, Edge (technology used to improve the data transmission rate of a mobile phone network), and 3G.

In a ruling running to nearly 500 pages, which pores over the details of this complex case, Justice Amit Bansal concluded that Lava International had infringed seven of those patents.

The Swedish smartphone manufacturer was also awarded damages of Rs 244 crore (approximately $29 million), along with an interest rate of 5% per annum until the damages are paid in full.

Saya Choudhary Kapur, a senior partner at Singh & Singh, led the litigation team for Ericsson. Following the verdict, delivered on March 28, she told WIPR that the judgment is “truly groundbreaking in many ways and shall set the way for future SEP litigation in India.”

She also said that the damages awarded to Ericsson are “the highest quantum of damages in any patent matter in India to date.”

WIPR spoke to Choudhary to find out more.

WIPR: What was your role as counsel for Ericsson?

SCK: I was heading this litigation for Ericsson before the Delhi High Court, and my role included formulating strategy, finalising written submissions/notes of arguments, participating in court hearings, and arguing the matter in court on various aspects before the Judge at the final hearing stage. Needless to state, I was ably supported by my team.

What was your team’s strategy for success?

As this was a highly complex case, we endeavoured to streamline our arguments in such a manner that highlighted the strength of Ericsson’s case on various issues in a succinct manner.

I further believe that the judgment was a culmination of our efforts that were constantly put in at various stages (pleadings, evidence, arguments, overall strategy) all through the pendency of the matter.

What was the biggest challenge for your team in ensuring Ericsson’s win in court, and how did you overcome it?

The biggest challenge was to ensure that the defendant’s attempts at convoluting the case were nullified. A lot of time was spent devising litigation strategy to achieve a favourable outcome.

Could you explain what this judgment means for future SEP litigation in India, and why?

The Ericsson/Lava judgment, being the first post-trial telecom SEP case where the court has determined FRAND rates, has contributed towards shaping the Indian jurisprudence and will set the pace for future SEP litigation in India.

It has clarified a lot of pending issues that are raised in SEP litigation, which will now act as a precedent.

For example:

• Damages are payable on all devices that comply with the concerned standard and not just tested devices.
• Delay in negotiations, failure to respond to offers and failure to provide counteroffer are indicative of unwillingness.
• In SEP cases, damages are to be calculated as a loss of the licence fee.
• Calculation of royalty at end-product level is the most appropriate approach.
• Licensing of an entire portfolio is essential.
• Comparable licences are the preferred approach to determine whether offers are FRAND and to determine the FRAND rate.
• Royalty stacking and hold-up must be established by concrete evidence.
• Inventions that result in technical effect which transforms or enhances functionality and effectiveness of a general-purpose processor are patentable.
• Inventions that use mathematical equation, algorithms etc, as an element amongst others to transform the functionality of a system or device can be patentable.

What does the case outcome mean for SEP litigation in India more generally?

We are seeing an increase in SEP litigation in India, and I am sure the jurisprudence relating to the same shall continue to grow and evolve along with technology and industry.

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