(Prayer: This Commercial appeal (COMAP) is filed under Section 13 (1A) of the Commercial Courts, Commercial Division and Commercial Appellate division of the High Court Act, 2015 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, praying to set aside the order dated 17.07.2019 in Com.O.S.194/2019, passed by the learned LXXXII Additional City Civil and Sessions Judge (Commercial Court), Bengaluru, dismissing I.A. No.2 and consequently, to allow I.A. No.2 filed by the appellant in Com. O.S.No.194/2019 filed under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908.)
Abhay S. Oka, CJ.
This appeal is by the Plaintiff in Com O.S. 194/2019 pending on the file of the LXXXII City Civil Judge (CCH-83) Bengaluru. By the impugned Order dated 17th July, 2019, the learned trial Judge has rejected Interlocutory Application No.2/2019 filed by the plaintiff-appellant in the said Commercial Suit. The prayer in the said IA was for grant of an interim order of injunction. As noted in the order dated 30th August, 2019, the appellant has deleted the name of the 4th respondent from this appeal and has stated that an application will be made before the trial Court for deleting the name of the 4th respondent from cause title of the suit.
1. The appellant is the plaintiff and the respondents are the defendants. The appellant claims to be an innovator company which has solved several problems in the area of industrial manufacture. The appellant has stated that it has done work of different categories of industries. It is stated that the appellant has applied for several patents for its pioneering processes, products and machines. According to the appellant, it had also applied for over one hundred patents in the area of continuous process of engineering and the list containing grant of patents and patent applications pending has been annexed to the plaint. The appellant has stated that it is a part of the STEER group of companies and said STEER group of companies also extends its operations in manufacturing process in food and pharmaceutical industry which provides unique solutions in the product development and drug delivery systems. It is stated that STEER group also designs/creates advanced technology platforms which can help manufacturers and research departments test and create formulations at the laboratory level and for commercial production. The awards received by the appellants for its contribution as an innovator in polymer science and extruder technology have been set out in the plaint.
2. It is stated in the plaint that the appellant's pioneering technology was the use of the process of extrusion in various industries. The process of extrusion is a manufacturing process in which a softened material is typically forced through a shaped metal piece or die to produce a formed product. It is claimed that the appellant has prior experience of gelatinizing starches used in extruder in a controlled manner. In addition, the appellant has a prior experience with simultaneous gelatinization and hydrolysis of starch using an extruder. It is claimed that the appellant's work in the area of technology is confidential. It is alleged that the appellant has taken measures to ensure that the information is available only on a need to know basis under strict confidentiality obligations.
3. The case of the appellant is that the appellant's test results and its databases are protected under Section 2 (o) of the Copyright Act, 1957 (for short, 'the said Act of 1957'). It is alleged that the appellant has expended its independent skill, labour, time and capital in generating its proprietary test databases and test results which are its original works and therefore, they are entitled to protection under the said Act of 1957. It is alleged that from the year 2013 to 2015, the appellant was consulted by the 4th respondent who had unsuccessfully been trying to use the process of extrusion for manufacture of its nutritional beverage called Horlicks. In this period, the appellant devoted its extensive efforts and used its knowledge of extrusion process to enable the use of extrusion process for manufacture of Horlicks. It is alleged that use of extrusion technology for the manufacture of nutritional beverages was not known before the pioneering work made by the appellant. It is alleged that prior to being approached by the 4th respondent, the appellant had developed technologies in-house that enable controlled gelatinization of starch in an extruder and the same has been admitted by the 4th respondent in the task order dated 14th August, 2013 and that the said respondent had no knowledge of using extruder without the pre-conditioner (or batch mixer). A Master Services Agreement (MSA) was earlier entered between the appellant and the 4th respondent. The appellant has set out the details of the process parameters for manufacturing of Horlicks at the laboratory scale developed by it. It is alleged that the process parameters and the manner of elimination of the pre- conditioner, while using extruders, are confidential and the intellectual property of the appellant. It is claimed that the copyright works were created by the appellant's employees and therefore, the appellant is the first owner of copyright in these test databases and has the exclusive rights inter alia to use, reproduce, and communicate to the public these databases as provided in Section 14 of the said Act of 1957. It is, therefore, alleged that any breach of these rights would amount to infringement of the appellant's copyright.
Without prejudice to the contentions narrated supra, it is further contended in the plaint that the appellant has also secured its right under a contract. In support of the said claim, the appellant has relied upon its Master Services Agreement (MSA) entered with the 4th respondent on 9th August, 2013 read with various tasks orders issued from 14th August, 2013 till 28th April, 2014. It is claimed that the appellant's rights in its confidential information and all intellectual property relating to or arising from its hardware were well protected.
4. It is contended in the plaint that the first and second respondents have made international patent application in the subject matter of the present suit. It is alleged that the reading of the background to invention mentioned in the impugned international patent application shows that it admits that gelatinization of starches in an extruders at high speeds and using high shear was not known. The first and second respondents admit that the prior art in fact taught that higher amounts of water and enzyme is required for higher conversion of starches.
5. It is pointed out that the impugned patent application describes experiments conducted at the plaintiff's premises where gelatinization of starches was done in an extruder at high speed using lower amounts of enzyme and water. The admission are quoted as under:
"a. Example 1, internal page 9: Use of Omega series of extruders available from Steer India for the process of the patent invention.
b. Example 2, internal page 13: Use of Omega 30 twin-screw extruder (Steer India) for production of a dextrinized product."
It is pointed out that the appellant is involved in an arbitration proceedings against inter alia GSK Consumer Healthcare Pte Ltd, which is a company incorporated in Singapore and the proceedings are pending before Singapore International Arbitration Centre. The appellant relied on two orders passed under Section 9 of the Arbitration and Conciliation Act, 1986, in arbitration proceedings before the Delhi High Court. It is stated that during the course of said arbitral proceedings before Singapore International Arbitration Centre, the GSK Consumer Healthcare Pte Ltd, (for short, Singapore Company') filed a reply to the appellant's application for interim relief on 23rd May, 2019. In the said reply, the Singapore Company referred to filing of the impugned patent application by the 1st and 2nd respondents. It is alleged that the appellant was shocked to find that the impugned patent application incorporates the appellant's intellectual property and confidential information. It is stated that the act of the 1st and 2nd respondents of filing and causing publication of the impugned international patent application gives rise to the present suit. It is stated that the impugned application has been assigned to the 1st and 2nd respondents by the 3rd respondent, as reflected from the records of the Indian Patent Office. The appellant has reproduced in paragraph-21, the background to the invention as stated in the impugned patent application. In paragraph 22 of the plaint, the key claims of the impugned patent application have been set out. It is further alleged that from the claims made in the impugned international patent application, the 1st and 2nd respondents have unlawfully disclosed and are seeking a monopoly over the appellant's proprietary extruder technology, parameters directly emanating from appellant's hardware and know-how which was confidential and proprietary to the appellant even prior to its engagement by the 4th respondent. It is further alleged that the act of filing and publishing of the impugned international patent application amounts to infringement of the appellant's rights in its proprietary information and intellectual property. It is alleged that the 1st and 2nd respondents have unlawfully used the appellant's test databases in drafting the impugned patent application and the act of using, storing and reproducing the test results amounts to infringement of copyright. The allegation is that the act of 1st and 2nd respondents amounts to misappropriation of a part of the appellant's technologies which admittedly have great commercial value.
6. On the basis of the above allegations/pleadings, the appellant has filed the commercial suit, seeking a perpetual injunction to restrain the respondents, its group/sisters concern companies from infringing the rights of the appellant in its intellectual property or confidential information in any manner including by asserting, enforcing any rights in the International Patent Application No.PCT/US2016/028574 against any party, or from transferring the said patent application to any third party. The interim relief prayed in IA-2/2019 is in same terms. In addition, in the plaint, a prayer is made for passing order for damages in a sum of Rs.1,00,00,000/-.
7. A statement of objections was filed by the 1st and 2nd respondents to the Interim Application (IA-2/2019). The first prayer made therein is that the plaint filed by the appellant under Order-VII Rule-1 of the Code of Civil Procedure, 1908 be rejected, as it has not disclosed any cause of action. It is claimed that there is no cause of action against 3rd and 4th respondents. It is pointed out that the appellant has also claimed its right under Master Services Agreement dated 9th August, 2013 between itself and the 4th respondent which contains a jurisdictional clause as well as the dispute resolution clause which provides for arbitration with its seat in London. In view of the specific clause contained in the said Master Services Agreement, the appellant will have to abide by the provisions of Master Services Agreement and take recourse to the remedy as provided therein. Another contention raised is about the territorial jurisdiction of the suit filed before the Civil Court at Bengaluru. It is contended that there is a mis-joinder of parties, inasmuch as, the 3rd and 4th respondents have been unnecessarily made parties to the proceedings, though no relief could be claimed against them. It is stated that in the list of patent applications filed by the appellant, the details of number of applications, patents granted and those pending have been mentioned, but in none of these applications, the appellant claims anything similar to what the impugned patent application contains. It is contended that the confidential information and intellectual property in question does not belong to the appellant but rather it belongs to GSK entity. Reliance was placed on clauses contained in the Masters Services Agreement between the appellant and 4th respondent and subsequent Service Development Agreement dated 29th October, 2015 between the appellant and Glaxo Smith Kline Consumer Healthcare Pte Ltd., which clearly records that all project intellectual property rights shall belongs to and vest in GSK. It is contended that the project IPR is defined in the said agreement with the GSK Company includes all intellectual property rights relating to any outputs. It is contended that test results and test databases relating to the project fall within the meaning of outputs. It is contended that the Development Services Agreement between the appellant and the Glaxo Smith Kline Consumer Healthcare Pte Ltd, clearly records that the 4th respondent has transferred its rights and interest over the Master Services Agreement to GSK. It is contended that the 4th respondent had developed the GSK two twin extrusion process before engaging the appellant including with other third parties and its running process without using a pre- conditioner.
8. It is contended that the appellant has an alternate remedy of filing pre-grant opposition under Section 25 of the Indian Patent Act, 1970 (for short, said Act of 1970). It is alleged that the said remedy ought to have been exhausted by the appellant before filing the commercial suit. It is contended that the appellant has not made out a prima facie case. Further, it is contended that the impugned patent application was published on 15th December 2017 in the official journal of the Indian Patent Office. Though the appellant claims that it came to know about the impugned patent application on 23rd May, 2019, the suit is filed only on 3rd July, 2019 and hence, there was delay in filing the commercial suit. It is alleged that 4th respondent, prior to any of the engagement with the appellant, had knowledge of using extrusion process for making Horlicks without a pre-conditioner and that the confidential information of intellectual property in question does not belonging to the appellant. It is submitted that the elimination of pre-conditioner cannot be a confidential information belonging to the appellant.
Decision of the trial Judge:
9. The learned trial judge, by the impugned judgment and order dated 17th July, 2019, after considering the conditions contained in the Master Services Agreement dated 9th August, 2013 wherein the appellant has been referred to as supplier and 4th respondent has been referred to as GSK, held that the information relating to any project of intellectual property rights or outputs under the Master Services Agreement or to be provided is a confidential information of GSK and not of the supplier. Secondly, it was held that the impugned International Patent Application was published on 27th October, 2016. The learned trial judge further held that the concept of two extruders in series for the conversion and drying of dextrinized starch, the production process, formulation and the technical information relating to the product disclosed by the 4th respondent to the appellant is an intellectual property exclusively owned by the 4th respondent. It was held that there is no document placed on record to show the details of the test of experiments etc., and the documents produced are incomplete which do not bear any signature and there was no material placed to show that the original literary work was done by the appellant. The learned trial Judge held that the impugned International Patent Application was published on 27th October, 2016 and database in the said application is in the public domain, since nearly about three years. It was further held that it is not stated in the International Patent Application that two extruder experiment was done in the premises of the appellant and hence, it cannot be said that the appellant has made out a prima facie case and balance of convenience lies in its favour. It was held that it cannot be said that the appellant would be put to irreparable injury, if the interim order is refused. Consequently, rejected IA-2/2019 filed by the plaintiff-appellant herein.
10. The learned counsel appearing for the appellant submitted that the 4th respondent was the only party with whom 1st to 3rd respondents had contractual relationship earlier. She submitted that the learned trial Judge completely ignored the fact that the 1st to 3rd respondents denied having derived any right, title or interest in the subject matter of the suit from 4th respondent. The learned counsel submitted that the 1st to 3rd respondents have not acquired any title or rights from 4th respondent. She pointed out that the rights of the 4th respondent stood transferred to GSK company which is not involved in filing patent application. Her submission is that there was no reason for the trial Court to go into the interpretation of Master Services Agreement between the appellant and the 4th respondent, when 1st to 3rd respondents were not claiming any right, title or interest from the 4th respondent. She submitted that even under the relevant clauses of MSA, the 4th respondent could not have transferred the confidential information of the appellant without consent of the appellant. She submitted that the finding recorded by the trial Court that the appellant was seeking an injunction on the process of extrusion is erroneous. She submitted that the appellant had made out a strong prima facie case and what was claimed in the impugned patent application was not the process of GSK but it is the appellant's process. She pointed out that GSK's extrusion process was involved in using a pre- conditioner/batch mixer before extrusion. She pointed that the impugned patent application does not contemplate a pre- conditioner/batch mixer and it envisages direct feeding of flour/starch into extruders which is, in fact, the appellant's process and therefore, the appellant is having title, right and interest over the process of said extrusion technology.
11. The learned counsel for the appellant submitted that the appellant's claim was on confidential information possessed by it prior to the execution of MSA and even the claim of the appellant over the process machine parameters was a prior claim. She pointed out that the suit was also based on the misappropriation of confidential information, of which the impugned patent application was one part. She pointed out that the impugned patent application mentions only two experiments in support of the claimed invention and both the experiments were conducted on the appellant's machines. She submitted that significantly, the appellant had not sold its machines to any of the respondents including 1st to 3rd respondents.
12. On the issue of the finding on delay, she submitted that the appellant had acquired knowledge of the impugned patent application only on 23rd May, 2019 in the course of arbitral proceedings before the Singapore International Arbitration Centre. She submitted that the impugned patent application was filed by stranger entities under the broad title 'a Novel Process' and therefore, it was not possible for the appellant to become aware of the same. She submitted that the prayer in the suit was in relation to alienation of confidential information as distinguished from prayer regarding the impugned patent application.
13. The learned counsel submitted that not a single document has been submitted by the 1st to 3rd respondents to support their claim that they owned the confidential information and as to how they came in possession of the tests data of the appellant. She submitted that the 1st to 3rd respondents have deliberately withheld the material information about the source of confidential information. As such, the trial Court ought to have drawn an adverse inference against the respondents.
14. As regards balance of convenience, the learned counsel appearing for the appellant submitted that the confidential information subject matter of the suit was referred in the impugned patent application. She pointed out that in the interim application, a restraint order for non-alienation of the said information was sought, in view of the impending sale of the Horlicks business to a third party. It is claimed that as the 1st to 3rd respondents are not using extrusion for manufacture of Horlicks and therefore, balance of convenience was in favour of the appellant. She submitted that irreparable loss and injury would be caused to the appellant, if interim order of injunction is not granted, inasmuch as, the confidential information will be lost forever.
15. There are certain other arguments canvassed about the redacted documents. However, during the course of oral arguments, the learned counsel appearing for the appellant not pressed the said document into service. She would submit that the appeal be allowed and interim injunction, as sought for be granted in favour of the appellant.
16. The learned counsel appearing for the 1st to 3rd respondents submitted that before filing commercial suit, the appellant ought to have exhausted the alternative remedy by filing pre-grant opposition before the Indian Patent Office, as contemplated under Section 25 and 26 of the said Act of 1970. He submitted that the only evidence placed on record by the appellant to show that the alleged information was belonging to the appellant was the document No.4 which was rightly discarded by the trial Court. He pointed out that the objection taken by the appellant against the finding of the learned trial Judge on this issue has been withdrawn. He submitted that prior to the execution of Master Services Agreement dated 9th August, 2013, there is no record available to show that the confidential information was owned by the appellant and the same has been misappropriated by the respondents. He submitted that in case of alleged copyright infringement, the work over which the copyright is being claimed has to be produced before the Court which has not been done by the appellant. He submitted that it is a fit case where the Court of first instance can exercise its discretion and rightly refused to grant an interim order of injunction. He submitted that there was a gross delay in filing the suit and that the confidential information claimed by the appellant has not been particularized. He submitted that there was an adequate explanation for the appearance of the appellant's name in the impugned patent application.
17. The learned counsel appearing for the appellant submitted that it was the duty of the 1st to 3rd respondents to disclose on oath the source of information which is found in the impugned patent application filed by the 1st and 2nd respondents. In support of her contention, she relied upon a decision of the Apex Court in the case of Gopal Krishnaji Ketkar -vs- Mohamed Haji Latif and others (AIR 1968 SC 1413). She submitted that the Apex Court has held that every party to a suit or proceedings is under an obligation to place on record the document in his/its custody which could throw light on the controversy involved in the lis, though there is no burden to prove any fact on that party. She submitted that as per the law laid down in the said decision, the 1st to 3rd respondents were under obligation to explain as to the source of information possessed them. As, they have failed to do so, an adverse inference has to be drawn against them. She also relied upon another decision of the Apex Court in the case of Badat and Company Bombay -vs- East India Trading Co (AIR 1964 SC 538). The learned counsel appearing for the appellant would submit that the delay in filing the suit will not defeat the right/claim of the appellant and the prayer for interim injunction. She submitted that raising an objection to the impugned patent application is not an efficacious remedy for the appellant.
CONSIDERATION OF SUBMISSIONS:
18. We have given careful consideration to the submissions made by the respective counsel. We have carefully perused the averments made in the plaint. The perusal of the averments made in the plaint will show that the relief sought by the appellant is in twofold:
i) First one is for protecting appellant's Copyright in an intellectual property.
ii) The second one is for protecting rights of the appellant in respect of alleged copyright.
19. As far as the confidential information is concerned, it is necessary to refer to the material averments made in paragraphs 8 and 9 of the plaint which read thus:
"8. One of the plaintiff's pioneering technologies was the use of the process of extrusion in various industries. Extrusion is a manufacturing process in which a softened material is typically forced through a shaped metal piece or dies to produce a formed product.
9. The Plaintiff had prior experience of gelatinizing starches in an extruder in a controlled manner. In addition the plaintiff had prior experience with simultaneous gelatinization and hydrolysis of starch using an extruder. The plaintiff's work in this area of technology is confidential and proprietary information and the plaintiff has taken measures to ensure that this information is only available on a need to know basis under strict confidentiality obligations."
As far as the alleged Copyright is concerned, the material averments are in paragraph-11 of the plaint which read thus:
"11. The Plaintiff's test results and test databases are protected under section 2 (o) of the Copyright Act, 1957. The Plaintiff has expended independent skill, labour, time and capital in generating its proprietary test databases and test results, and these are original works entitled to protection under the Copyright Act, 1957. The test databases contain extensive test results and an illustrative extract of the redacted test database created prior to the Plaintiff's engagement with defendant No.4, is produced herewith as Document No.4."
20. As far as the impugned patent application is concerned, we may note here that said application was filed by the 3rd respondent which was transferred to 1st and 2nd respondents. As observed by the learned trial judge, the impugned patent application was filed in the year 2015 and the databases in the said application are in the public domain, since nearly about three years with effect from 27th October 2016.
21. Now, coming to the knowledge of the violations alleged in the plaint, as per the averments made in paragraph 18 onwards of the plaint, it is the specific case of the appellant that on 23rd May, 2019, when Singapore Company filed a reply to the appellant's application before the Singapore International Arbitration Centre, the appellant came to know about filing of the impugned patent application and found that the confidential information of the appellant was disclosed in the said application.
22. The basic allegation in the plaint is that the impugned patent application incorporates the appellant's intellectual property and confidential information. The appellant has quoted what is stated in the patent application and the key claims made in the patent application. The said details are set out in paragraph-22 of the plaint. Thus, the case of the appellant is that the acts of 1st to 3rd respondents of using, storing and reproducing the test results of the appellant's amounts to infringement of its copyright. Secondly, the confidential information that is proprietary to the plaintiff is reproduced in the impugned patent application. The case of the appellant is that know-how of extruder technology was confidential and proprietary to the appellant even prior to its engagement with the 4th respondent.
23. Coming back to the case regarding existence of the copyright, according to the averments made in paragraph 11, proprietary test databases and test results are original works of the appellant which are entitled to protection under the said Act of 1957. The appellant has specifically stated that databases contain extensive test results. It is stated that an illustrative extract of the redacted test database created prior to appellant's engagement with 4th respondent is produced as document No.4 to the plaint. The trial Court, by recording a specific finding rejected the said document No.4 for the reasons recorded in paragraph 9 of the impugned order. Firstly, the learned trial judge has observed that there are no details of test databases test experiments in it. Moreover, it is an incomplete document which does not contain signature of anybody. Apart from that, the appellant has filed an application being IA-3/2019 before this Court, in which it was prayed that a sealed cover-A containing confidential lab notes, lab data and test databases created by the appellant prior to its engagement with 4th respondent in addition to the complete un- redacted document No.4 filed with the plaint be permitted to be produced before the Court. However, we must note here that the order dated 30th August, 2019 passed by this Court records that the appellant did not press the said IA 3/2019. IA 2/2019 was filed again referring to sealed cover-A and praying for a direction to the respondents to nominate not more than three Advocates who shall constitute a confidentiality club who would be entitled to inspect the confidential document/information. However, the order dated 30th August, 2019 passed by this Court records that even the said application was not pressed by the appellant, with liberty to apply for the trial Court keep the said document confidential. Thus, even according to case made out in paragraph 11 of the plaint, the proprietary test databases and test results are original works of the appellant which are entitled to protection under the said Act of 1957. Only an extract of redacted test database was produced as document No.4. It is not a complete document and does not bear any signature. Thus, the original work in respect of which Copyright is claimed was not produced before the trial Court. Only a redacted version of alleged original work was produced. Applications being IA-2/2019 and 3/2019 under which the appellant sought permission for production of confidential databases containing extensive test results created prior to appellant's engagement with 4th respondent were withdrawn as not pressed.
24. As narrated earlier, cogent reasons have been recorded by the trial Court for discarding document No.4. The main reason is that what was produced was a redacted document. It is settled law that in a suit filed alleging infringement of Copyright, the plaintiff must show to the Court what is the original literary, dramatic, musical and artistic work etc., in respect of which a Copyright is claimed.
25. The reasons given by the trial Court for rejection of document No.4 cannot be faulted with at this stage, inasmuch as, what was produced before the trial Court was an ordinary redacted copy. As stated earlier, apart from producing document No.4, the appellant had filed IA-2/2019 and 3/2019 for production of originals of databases containing extensive test results prior to appellant's engagement with 4th respondent in sealed cover-A, in this appeal, which were not pressed at later stage, as per order dated 30th August, 2019. Thus, it is clear that the proprietary test databases and test results were not produced before the trial Court and even before this Court. According to the case of the appellant, the proprietary test databases and test results are its original works which deserve protection under the said Act of 1957. Therefore, it will have to be held that as far as infringement of Copyrights is concerned, no prima facie case is made out. As noted earlier, the IAs were withdrawn with liberty to apply to the trial Court.
26. Now we turn to the issue of confidential information. In order to prove such a claim, the plaintiff must clearly identify the information relied upon by it and must show that it was the information that could be treated as a confidential information. What is important is that that the confidential information must be identified and confidential information so identified must be original and not in public domain.
27. At this juncture, it will be necessary to refer to the averments made in paragraph 15 of the plaint as regards the confidential information which reads thus:
"15. The process parameters and the manner of elimination of the pre-conditioner, while using extruders, are confidential to and the intellectual property of the plaintiff. The Plaintiff has made significant efforts to keep its unique knowledge about, and skills within, the production of nutritional beverages using the extrusion process using the extrusion equipment, confidential. The Plaintiff's knowledge and skills have been built up through thousands of tests. The said efforts have been kept secret partly through the fact that internal information has been distributed on a need-to-know basis only and partly by the conclusion of confidentiality agreements between the Plaintiff's and their clients and subcontractors, where the subcontractors have been involved in the production."
28. We must note her that Master Services Agreement (MSA) was entered into between the appellant and the 4th respondent on 9th August, 2013 and the task order was entered into between the appellant and the 4th respondent on 14th August, 2013. In fact, there are three other task orders dated 16th September 2013, 26th November, 2013 and 28th April, 2014. Thus, it is clear that there was a Master Services Agreement existed as on 9th August, 2013 itself. In paragraph- 14 of the plaint, it is vaguely stated that from 2013 to 2015, the appellant devoted extensive efforts to use its proprietary hardware to develop the process parameters for the manufacture of Horlicks at its laboratory scale. Thus, the averments made in the said paragraph indicate that the information which is now claimed as confidential may have come into existence after the appellant's transactions i.e., Master Services Agreement and Task orders with the 4th respondent. There is no material at this stage to conclude that the alleged confidential information was in existence before MSA was executed.
29. There is one more aspect of the case. The learned trial Judge has referred to the terms contained in the Master Services Agreement and task orders entered into between the plaintiff-appellant and the 4th respondent. The learned trial Judge has relied upon terms contained in clause 1.1 of the said MSA., defining confidential information. The said clause 1.1 of the MSA., reads thus:
"in relation to either party any information or date (in whatever media), including data of a personal nature, which is made available by that party or its Affiliates or its or their Agents to the other or its Affiliates or its or their Agents for the purposes of this Agreement or which (in the case of Confidential Information of GSK) relates to any Intellectual Property Rights which are assigned to GSK under this Agreement. For the avoidance of doubt, information relating to any Project IPR and/or Outputs under this Agreement shall be treated as the Confidential Information of GSK and not the Supplier."
Thus, in view of the terms contained in clause 1.1 quoted supra, the learned trial Judge has come to the conclusion that the information relating to project intellectual property rights and outputs under the agreement shall be treated as confidential information of GSK and not that of the appellant. It will be therefore necessary to make a reference to the terms and conditions of the MSA between the appellant and GSK. Some of the terms and conditions contained in MSA have been quoted by the learned trial Judge in the impugned judgment and order. In paragraph 15 of the impugned order, the learned trial Judge referred to the submission made by the learned counsel for the appellant to the effect that the impugned International Patent Application (IPA) includes parameters developed and test databases of the plaintiff, as could be compared with document No.4. The case of the appellant is that in the impugned patent application, it is stated that two extruder experiments were made
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in the premises of the appellant. On perusal of the impugned international patent application, the learned trial Judge rightly held that there is nothing mentioned in the patent application that experiments of two extruders were done in the premises of the appellant. 30. Firstly, we may note here that no reliance can be placed on document No.4. Secondly, the appellant has not come out with clear case as to when the alleged confidential information consisting of proprietary test databases and test results was generated. It was necessary for the appellant to prove the same so as to prove that it was an information which was confidential and it was generated before it was parted with under MSA executed with the fourth respondent. The appellant was required to clearly identify the information relied upon by it and establish that, prima facie, the said information is of a confidential nature. On perusal of the case made out in the plaint, for the reasons recorded above, it is very difficult for this Court to accept that such a prima facie case is made out by the appellant. If such a prima facie case is not made out, the fact that the 1st to 3rd respondents did not disclose as to how they obtained information which is a part of the impugned patent application has no relevance at all. 31. As stated earlier, the relief claimed by the plaintiff- appellant is not only in respect of the infringement of its Copyright but also about confidential information disclosed in the impugned patent application. Injunction is claimed against the 1st to 3rd respondents from infringing the appellant's rights in respect of confidential information and its intellectual property rights in any manner including by asserting and enforcing any rights in the impugned international patent application. It is in the context of the relief concerning confidential information, the delay may be relevant. As noted by the learned trial Judge, the impugned international patent application which was filed on 21st April, 2016 was published on 27th October, 2016 and therefore, the alleged confidential information disclosed in the impugned patent application was in public domain with effect from 27th October 2016. When the appellant claims equitable relief which is of a discretionary in nature of grant of temporary injunction, the fact that the suit is belatedly filed in July, 2019 certainly becomes relevant. The argument that the appellant could not have secured the information online about the impugned international patent application is not sufficient to discard the arguments on the ground of delay and latches. 32. The scope of interference at the hands of Appellate Court against an order refusing to grant discretionary and equitable relief of temporary injunction is limited, as distinguished from an appeal against a final judgment in the suit. It is settled law that unless the discretion exercised by the trial Court is shown to have been exercised in a perverse manner or unless the order is shown to have been illegal, the appellate Court will be slow to interfere with such a discretionary order. We concur with the finding recorded by the learned trial Judge that a prima facie case was not made out by the appellant for grant of interim injunction. In this view of the matter, we are of the considered view that no interference is called for with the impugned order and the appeal deserves to be dismissed. Accordingly, we pass the following order: i) The appeal is dismissed with no order as to the costs; ii) Notwithstanding the dismissal of the appeal, it will be open for the plaintiff-appellant to make appropriate application before the trial Court, as indicated in the order passed on IA Nos. 2/2019 and 3/2019 dated 30th August, 2019; iii) We make it clear that any of the observations made in this order and the findings recorded are only for the purposes of examining the existence of a prima facie case. The suit will be finally decided by the trial Court without being influenced by the said prima facie findings.