TVS asked to show it didn't infringe patent

A division bench of the Madras high court last week asked TVS Motor Co. Ltd to prove that the technology used in its Flame brand of motorcycles did not infringe on a patent held by Bajaj Auto Ltd.

The division bench directive reverses an order of a single bench of the same high court, which a few months ago had asked Bajaj to prove that TVS impinged on patented technology used in its Pulsar range of bikes.

Both the companies declined to comment on the latest order.

In 2007, TVS had filed a lawsuit against Bajaj seeking a declaration of non-infringement, groundless threats and compensation on the back of Bajaj’s media campaign that TVS’ 125cc Flame bike infringed its patent.

Soon after this, Bajaj filed a counter-suit seeking an injunction against TVS’ new product on the ground that it infringed upon its patent on a twin-spark technology used in its Pulsar motorcycles.

The division bench said that since TVS contested the patent obtained by Bajaj, the burden of proof was on TVS.

“Since the plaintiff has made a categorical assertion in the plaint that they would prove the groundless threat and non-infringement of patent by adducing evidence, it should have been called upon to produce evidence in support of their contentions,” the division bench said.

In response to an interim injunction filed by TVS in May 2009, which restrained Bajaj from interfering with the manufacturing and marketing of TVS products with two spark plugs and three valves, the Supreme Court in a September 2009 judgement allowed TVS to sell the Flame, but directed that it maintain and file accounts of sales that would have to be verified by a receiver appointed by the Madras high court.

“The nature of these litigations, which had no precedent in the country, was actually delayed on lack of clarity on the lead of evidence since the court had clubbed the hearing of two suits on the same matter,” said Sumathi Chandrashekaran, a patent lawyer who first blogged on the court’s new directive.