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S. Paul Raj v/s Tata Consultancy Services Limited, represented by its Managing Director, Bombay House & Another

    O.A.NOS.339 & 340 of 2009 In C.S.No.297 of 2009

    Decided On, 11 August 2009

    At, High Court of Judicature at Madras


    For the Applicant: Preumbulavil Radhakrishnan, Advocate. For the Respondents: R. Yashod Vardhan, SC, R. Sunilkumar, Advocate.

Judgment Text

(Prayer: A.No.339 of 2009 is filed seeking for an interim injunction restraining the respondents/defendants from in any manner infringing the plaintiff's copyright in the work titled FLYGUARD in respect of the invention of the plaintiff under the name/title e-passport (smartcard) and also as TCS e-Passport Solution or such other name or title or any other work or works with are in any manner identical and similar with the copyright in the work on the plaintiff's invention/work FLYGUARD.

A.No.340 of 2009 is filed seeking for an interim injunction restraining the respondents/defendants from in any manner infringing the plaintiff's patent in the invention titled FLYGUARD in respect of the invention of the plaintiff under the name/title e-passport(Smartcard) and also as TCS e-passport Solution or such other name or title which are in any manner identical or similar to the invention of the plaintiff's invention FLYGUARD.)

Heard both sides. Both applications were filed by the applicant/plaintiff.

2. The first application is for the grant of an interim injunction, restraining the respondents/defendants from infringing the plaintiff's copyright in the work titled "FLYGUARD" in respect of the invention of the plaintiff under the name/title "e-Passport(Smartcard)" and also as "TCS e-Passport Solution" or such other name or title which are in any manner identical and similar with the copyright in the work on the plaintiff's invention/work "FLYGUARD".

3. The second application is for an identical prayer for infringing of the Patent for the invention made by the applicant/plaintiff.

4. The suit was filed by the applicant/plaintiff for the very same prayers and also to direct the surrender to the plaintiff the materials accumulated by the defendants in this regard and for a further direction to render true and faithful accounts of profits earned by the defendants.

5. It is claimed by the applicant that he had studied B.Sc.(Computer Science) and during his study, he identified several areas in common daily life, which can be simplified with the intervention of technology. In order to avoid the aircrafts being hijacked and also the lives of several unwary travellers being put to peril, the applicant invented the concept of a travel document, which will be the substratum for the information of the traveller. The travellers details as also all data (both physiological and physical) will be retained in the document that they carry with them.

6. According to the applicant, the entire details will be entered into a magnetic tape which will store all the details of the individual including his place of origin, his finger prints and his retinal/corneal pictures. The details thus gathered will be stored on a main processor and it will be made available to all Government agencies from a network. In cases of threat of impersonation either through stealing of documents or carrying a dead person's documents, it can be immediately detected. Even the Visas given to travellers to other countries will not be misused if such traveller documents are put in use. Therefore, the applicant claimed that the invention of such concept is in terms of Patent Act as it was a novel concept and it had not been put to use so far.

7. It was stated that he spent 20 months in developing the concept and translating the process into practice. The applicant after formulating the work in the nature of invention, made enquiries with various business houses and Governments from June and July, 2006. The applicant also claimed that he sent communications to the defendants and sought for an opportunity to explain his invention and the process. The applicant contacted the Managing Director and Chief Executive Director of the respondent Company through an e-mail dated 1.8.2006. It was claimed that the CEO invited the applicant for a personal discussion and he was directed to meet the head of the Human Resources (HR) Department at Chennai (second defendant). An appointment was given to him on 12.08.2006. The applicant met the second defendant on that date at Chennai. The defendant required proof of the applicant's concept and invention. Thereafter, the applicant e-mailed the concept to the first respondent as an attachment to the e-mail dated 12.8.2006. The applicant had named the concept as "FLYGUARD".

8. It was stated that the second respondent and one Ms.Sheetal from HR Department asked to prepare a budget plan of the project and full details of the concept. However, the applicant made it clear that the budget layout was not his primary concern and he was willing to sell his project in terms of his discussion for an amount of Rs.5 Crores as royalty and an agreement can be arrived at. Thereafter, it is claimed that several other persons wanted the applicant to meet them. He also met the Vice President and Head of the Global Government Industry Group of the respondent. It was also claimed that the applicant was offered an employment with the respondent, which was not a requirement of the applicant. He declined the same as he had to clear the papers in his qualifying examinations. It was only with a view to snatch the applicant's patent of his invention, the respondents had offered him an employment that too for a pittance.

9. It was stated that the respondents changed their stand especially on a perusal of an e-mail, dated 18.8.2006. It was also claimed that the applicant had received an e-mail, dated 25.8.2006 requesting him to get in touch with the HR department at Chennai. It was further stated that on 6.9.2006, the defendants informed him that in its current form, it will not fit into the overall situation. The respondents on 11.9.2006 wanted to analyze the suitability of the applicant's invention if he had to join their company. Thereafter, the respondents never got in touch with the applicant. The applicant thought that it would be safer for him to file an application for registration of the patent for his invention. Accordingly, he had also filed an application in the Patent Office on 3.9.2007. He addressed a letter to the respondents regarding his patent right in the invention vide e-mail, dated 5.9.2007. Thereafter, the applicant came to know that the respondents had placed the innovation on their web-page under the title "ePassport (Smartcard)" and also as "TCS ePassport Solution". It is stated that the applicant is the owner of the intellectual property in the patent regarding his invention/copyright in the written form of the project concept and the respondents' attempt to infringe the copyright as well as the applicant's patent must be prohibited. It was stated that if the respondents are allowed to proceed to infringe his copyright and patent, it will cause prejudice to him. Therefore, in the interest of balance of convenience, the interim relief should be granted in his favour.

10. Only notice was ordered on these applications as caveat was entered by the respondents. The respondents have filed a detailed counter affidavit, dated 21.4.2009.

11. In the counter affidavit, it was stated that the respondents company is the India's largest Information Technology Company. As a reputed company, they ensure that its processes are developed at the greater cost and through indigenous efforts, which will not infringe the intellectual property rights of the third parties. With reference to the applicant's claim, it was stated that the applicant's so-called concept called "FLYGUARD" to operationalize the process of flying across countries using digitally encrypted biometric card embodying physical and physiological parameters and doing away with the requirement of passport or visa is bereft of any novelty. It is neither original nor new. Such concept involves technologies that are already in public domain for a long time. The applicant admittedly had not operationalized the so-called idea. In the absence of any invention for which if a patent is granted, there cannot be any infringement and the application for a relief based on the Patent Act is not maintainable.

12. Since the applicant is not the owner of his work, the question of infringement of any copyright may not arise. It was further stated that the Machine Readable Travel Documents (MRTD) commonly known to the layman as ePassport has been in public domain ever since the International Civil Aviation Organizations (ICAO) work on machine readable travel documents began in the year 1968 and with the establishment by the Air Transport Committee of the council of a Panel on Passport Cards. The panel produced number of recommendations including the adoption of optical character reading (OCR) as the machine reading technology of choice. On 1980, the specifications and guidance material were published. It became the basis for the initial issuance of machine readable passports by Australia, Canada and the USA. Those concepts have been modified with the growth of new technologies. It was also stated that the idea of the applicant is neither new nor involved any inventive step within the meaning of Section 2 of the Patent Act, 1970. It is also not an invention in terms of Section 3 of the Patent Act.

13. It was further claimed that the idea or discovery even assuming that it was the applicant's idea and a new discovery, it is not patentable as the practical application of that idea or discovery that leads to patentability is absent in the present case. FLYGUARD is silent on the mechanism or apparatus necessary to operationalize the idea. It was further stated that the concept of biometric identification systems actually dates back to 1879 when French Police suggested that an individual could be identified through precise measurements of the body. By 1976, the Argentine police were using the system that combined scanned fingerprints with digital processing and radio technology to send biometrical information from the police cars to a central database. Further, fingerprints are used today not only for forensic investigation, but also for passports, ID cards, etc. It was stated that the sister company of the respondents CMC is one of the leading developers of fingerprint technology.

14. It was further stated that the production of MRTD with the ICAO standard involves complex mechanism and only few companies in the World have proven expertise in this area. It was further submitted that the ePassport services are being currently used in some countries, but the standards are yet to be perfected. The applicant sending various e-mails to various functionaries in the respondents company clearly shows that there was no claim for any new invention.

15. The correspondence that the applicant had with the respondents company shows that he was yet to clear his B.Sc. (Computer Science) course and his sister was without a job. The applicant had no grasp of the issues involved. The applicant's e-mail, dated 27.9.2006 showing that it involved Rs.11,000 crores budget will show that it was a tall claim made by the applicant. It was a case where the applicant wanted a job for him and for his sister. When the applicant met the officials of the second respondent, it was found out that the applicant had arrears to clear in his degree course and he had fallen on hard times being the only bread winner of his family and he was in need to support his sister and brother's education. The applicant's claim for payment of royalty even when he knows that his project will not pass any scrutiny by any agency will clearly show that it will not worth using such ideas. When the applicant started sending mails stating that the respondent had cheated him, the respondent closed the loop on his correspondence. It was also stated that the application to secure patent was submitted only in September, 2007 just prior to the institution of the suit. There is no patent registration in his name. It was asserted that the respondent never infringed any copyright of the applicant and the present suit and the applications are vexatious and frivolous.

16. It was further claimed that several countries listed in paragraph 16 of the counter are at various stages of issuing ePassports to their citizens embedded with microprocessor chips. The ICAO is yet to convince all the countries about the safety of storing fingerprint on ePassports. It was also stated that the respondents Solution regarding ePassport have been widely reported in newspapers. The claim that the applicant had offered to sell his ideas of FLYGUARD for a royalty of rs.5 Crores was denied. It was found out by the respondent company's officials that there was no novelty in the concept of the applicant. The allegation that the respondent had committed theft of his invention was also denied. The balance of convenience was not in grant of any interim order in the absence of the applicant establishing any prima facie case.

17. A typed set of documents were also filed by the respondents in support of their averments. Document No.1 produced by the respondents is the MRTD guidelines issued by the ICAO. In page 61 of the technical report, the term smart card is used. In page 63 of the report, the concept of storage of biometric chip is also mentioned. The word ePassport was also referred to therein. Therefore whether it is a smartcard or ePassport, the applicant cannot claim that it was his invention or that he has a prima facie case for patent of such an idea. Similarly, in the various correspondence which the applicant had with the respondents, nothing to indicate that the respondents have stolen the idea of the applicant, as claimed in his application.

18. In fact, in his e-mail, dated 29.8.2006 sent to the company, he querried regarding the possibility for a job for him in the company as well as a job for his sister. Even in the e-mail dated 20.1.2007, the applicant made a story about his poverty, his family and also an unemployment of his sister and brother and he clearly stated that he was not asking for money, but a job for his sister.

19. It is only in this context, this court will have to examine whether the applicant/plaintiff has made out any case for an interim relief and that whether he has made out a prima facie case in his favour and the balance of convenience was in his favour for the grant of an interim order.

20. It is not the claim of the applicant that he has a patent for the invention made by him. When a particular concept is in public domain and there is no novelty about the same and the respondents having established that the concept of ePassport through a smart card and the biomatric concept of introducing chips containing details have already been in public domain for several years. This fact coupled with the fact that the plaintiff/applicant had made a request to the respondents to provide employment for him and for his family will clearly show that the applicant was not making any bona fide claim against the respondents. He has neither made out any prima facie case nor the balance of convenience is in his favour for the grant of any interim order.

21. The Supreme Court in a judgment in Dalpat Kumar v. Prahlad Singh reported in (1992) 1 SCC 719 has set out parameters for the grant of an interim order under Order 39 Rule 1 CPC. The following passage found in paragraphs 4 and 5 may be usefully extracted below:

"4....In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court?s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is ?a prima facie case? in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in ?irreparable injury? to the party seeking relief and that there is no other remedy available

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to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. 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 damages. The third condition also is that ?the balance of convenience? must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. (Emphasis added) 22. The factual matrix of the case as set out in the pleadings and from the arguments by the counsel for both sides will clearly show that the applicant did not satisfy the ingredients for the grant of an interim order. 23. As rightly contended by Mr. R. Yashod Vardhan, learned Senior Counsel for the respondent that the applicant's attempt is only to coerce the respondents on the basis of certain unsubstantiated correspondence sent through e-mails to extract certain privileges and amounts and that he had set up the so-called invention which is otherwise available in public domain. 24. Both the applications must fail. Accordingly, they stand dismissed. However, there will be no order as to costs.