At, Supreme Court of India
By, THE HONOURABLE MR. JUSTICE ROHINTON FALI NARIMAN
By, THE HONOURABLE MR. JUSTICE ANIRUDDHA BOSE & THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
For the Appellant: K.V. Viswanathan, Yatin Oza, Sr. Advocates, Sandeep Grover, Pankhuri Bhardwaj, Vara Gaur, R. Venkataraman, Advocates, Pai Amit, AOR. For the Respondent: Chander Lal, Sr. Advocate, P.V. Dinesh, AOR, Vinod Khurana, T.P. Sindhu, Mukund P. Unny, Tarun Khurana, Rishabh Nigam, Anirudh Sarin, Vibhor Gupta, Niharika Sanadhya, Advocates.
1. The present matter arises out of a Suit filed by the petitioner before us - an Israeli Company against the respondents for infringement of copyright. The plaint contains an allegation that the plaintiff has secured a registration in the USA for the sixth version i.e. version 6.0 of its Advisor software, bearing registration No. TX 8-252-522, the text whereof includes programming from all previous versions.
2. The present proceedings arise out of a temporary injunction application, which was originally dismissed by the learned Commercial Judge at Vadodara, by his order dated 22.09.2017. Thereafter, the matter has travelled to this Court twice, and to cut a long story short, one Mr. Robert "Bob" Zeidman was appointed an expert to look into whether the software used by the respondents has, in fact, been copied from this version 6.0 of the plaintiffs. Ultimately, this Court, by its judgment dated 30.07.2018, framed two issues thus:
"(I) The propriety and correctness of the order appointing said Mr. Zeidman as an expert in the matter; and
(II) Whether the scope of the comparison ought to be restricted to version 6.0 in respect of which the plaintiff has registered copyright."
3. This Court continued with Mr. Zeidman as expert, and then made it clear that the infringement of registered copyright will be restricted only to version 6.0 stating, that nothing had been decided on merits. Mr. Zeidman thereafter visited India and came out with a report dated 22.03.2019 in which he stated that he was not able to "fully complete" the investigation so as to give a complete report.
4. Having heard learned Senior Counsel appearing for both sides and having regard to the fact that the present Special Leave Petition arises out of an order of the High Court of 19.07.2019 in which it refused to exercise its contempt jurisdiction in favour of the petitioner, we are of the view that it is necessary to have the matter decided by another neutral expert.
5. We, therefore, request the Director, I.I.T., Delhi to appoint a neutral expert in order to arrive at the truth in the present matter. Once the expert is so appointed, he will, then within a period of a week of his appointment, call upon both parties to submit all documents that are necessary in order that he arrive at the conclusion whether the stated version 6.0 for which the petitioner has a registered copyright in the USA. has been infringed by the software used by the respondent. It will be open for such expert to ask for all documents necessary in order that he find out whether such infringement had taken place, including DLL files. The expert will then deliver a report in secret in a sealed cover t
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o this Court within a period of 12 weeks of his appointment. 6. The Director, I.I.T. will ensure that the data submitted by both parties will not be compromised in any situation. 7. The costs for the Expert to be shared 50% each. 8. List the matter thereafter.