FAO(OS) (COMM) 147/2025 Page 1 of 54

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 03.08.2026

Judgment delivered on: 07.09.2026

Judgment uploaded on: 08.09.2026

# CNR No. DLHC010711982025

+ FAO(OS) (COMM) 147/2025 & CM APPL. 60385/2025 CM APPL.

72055/2025

CONQUEROR INNOVATIONS PRIVATE

LIMITED. & ANR. .....Appellants

versus

XIAOMI TECHNOLOGY INDIA PRIVATE

LIMITED .....Respondent

Advocates who appeared in this case

For the Appellants : Mr. C.M. Lall, Sr. Adv. with Mr. Rahul

Chaudhry, Mr. Nikhil Sharma, Mr. Sidharth

Sharma, Mr. Divesh Vashist, Advs.

For the Respondents : Mr. L Badri Narayanan Adv., Mr. Prashant

Phillips, Ms. Vindhya S. Mani, Mr.

Pallasash Shankhdhar, Mr. Kartikay Singha,

Ms. Ardra Goodwin, Ms. Khushi Lokwani,

Advs.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

JUDGMENT

MANMEET PRITAM SINGH ARORA, J.

FAO(OS) (COMM) 147/2025 Page 2 of 54

1. The present appeal has been filed challenging the judgment dated

04.07.2025 passed by the learned Single Judge in I.A. Nos. 10606/2023 and

14719/2023 in CS(COMM) 361/2023 [‘impugned judgment’], whereby the

Appellants’ applications for interim injunction were dismissed.

1.1. The learned Single Judge concluded that the Appellants have failed to

establish a prima facie case of infringement against the Respondent; the

balance of convenience is also in favour of the Respondent as the

Respondent’s products have been sold in India since 2014, whereas the suit

has been filed in the year 2023, with an inexplicable delay of nine (9) years;

irreparable injury and undue hardship would be caused to the Respondent if

an interim injunction is granted in favour of the Appellants, restraining the

Respondent from selling its devices [‘impugned devices’] in India.

1.2. The learned Single Judge held that in the event the Appellants

succeed at the time of final adjudication of the suit, the Appellants can be

suitably compensated by way of damages. The learned Single Judge held

that there is nothing on record to suggest that the Respondent is not in a

good financial condition or that the Respondent would not be in a position to

satisfy a decree for damages that may be passed against the Respondent

upon final adjudication of the suit. However, the learned Single Judge

directed that the Respondent shall maintain complete accounts of the

manufacture and sale of the impugned devices and file the statement of

accounts on a half-yearly basis.

FACTS AS STATED IN THE APPEAL

2. Facts as stated by the Appellant in the appeal are as under: -

FAO(OS) (COMM) 147/2025 Page 3 of 54

2.1. The underlying suit has been filed

1

inter-alia seeking the relief of

permanent injunction restraining the Respondent from infringing the

Appellant’s registered patent no. 244963, titled ‘A Communication Device

Finder System’ [‘suit patent’ or ‘system’].

2.2. Appellant No. 2 is the inventor and first owner of the suit patent. It is

stated that the suit patent was assigned by Appellant No. 2 to Appellant No.

1 vide Deed of Assignment dated 29.04.2021 and subsequently the name of

Appellant No. 1 was entered as the company entitled to the suit patent.

2.3. It is stated that in August 2004, a burglary at Appellant No. 2’s

premises, during which he lost 152 mobile phones, gave Appellant No. 2 the

idea to develop technology to recover lost/stolen devices without the need of

enforcement agencies.

2.4. In the appeal, at paragraph no. 6, the features of the suit patent have

been described, which reads as under:

“The suit patent essentially features a communication device finder system

comprising a non-erasable security activation element which can be

provided in (Claim 1- Element 2):

(i) Read-Only-Memory (ROM) or

(ii) in flash memory.

The security activation element is adapted to activate and bring the

communication device finder system into an auto-answer mode, on being

triggered using any of the following modes (Claim 1 - Element 3):

(i) another communication device;

(ii) through internet by a predetermined IP address (website); or

(iii) by entering incorrect PIN/ Password.

1

On 19.05.2023

FAO(OS) (COMM) 147/2025 Page 4 of 54

The other features of security activation element forming subject matter of

suit patent include the following:

(i) Identifying the location of the lost/ stolen/ misplaced device (Claims 2

and 9);

(ii) Playing sound on lost/ stolen/ misplaced device (Claim 4); or

(iii) Erasing data (such as contacts) on the lost/ stolen/misplaced device

(Claim 5).”

2.5. It is stated that the essential features of the suit patent have been

enlisted as essential requirements of the standard published by an SSO

2

as

well as various recommendation bodies for the telecommunication device

manufacturers as per the following standards prescribed by International

Telecommunication Union (‘ITU’):

“(i) T-REC-X.1127-09/2017: Functional security requirements and

architecture for mobile phone anti-theft measures.

(ii) T-REC-Q.5051-03/2020: Framework for combating the use of stolen

mobile devices.”

2.6. It is the Appellants’ case that in the year 2023 they learnt that the

Respondent is selling and manufacturing the impugned devices being

smartphones, tablets, Mi Pads, laptops and notebooks which incorporate an

‘anti-theft kill switch tool’ feature which implements the technology of the

suit patent.

2.7. It is stated that the impugned devices also comply with the ITU

standards T-REC-X.1127-(09/2017) and T-REC-Q.5051-(03/2020). It is

stated that the Appellants sent a legal notice dated 17.01.2023 to the

Respondent, asserting their statutory rights in the suit patent. It is stated that

2

Standard Setting Organisation

FAO(OS) (COMM) 147/2025 Page 5 of 54

through the same legal notice, the Appellants also offered the Respondent a

non-exclusive licence on FRAND

3

royalty rates; however, no response was

received from the Respondent. It is stated that the Appellants again sent a

follow-up notice dated 14.02.2023; however, no response was received from

the Respondent.

2.8. It is stated that in these facts the Appellants thereafter instituted the

suit seeking interim restraint against the Respondent.

2.9. By the impugned judgment, the Appellants' applications seeking

interim injunction were dismissed by the learned Single Judge.

2.10. It is, however, clarified in the appeal

4

that the Appellants are not

pressing for relief of injunction on the basis of SEP

5

requirement and are

only pressing for reliefs on the basis of direct infringement.

SUBMISSIONS ON BEHALF OF THE APPELLANT

3. Mr. C.M. Lall, learned senior counsel for the Appellants, states that

the impugned judgment proceeds on an erroneous construction of the suit

patent and the granted claims, particularly Elements E2 and E3 of

Independent Claim 1.

3.1. He states that the Respondent’s ‘Find Device’ feature maps onto the

essential features of the suit patent stipulated under Element E2 as the said

feature is pre-installed in ROM and is non-erasable, capable of being

activated through the internet, and performs functions such as locating the

device, playing sound, and erasing data; which corresponds to Independent

3 Fair, Reasonable and Non-Discriminatory

4

At paragraph 8 of the appeal

5

Standard Essential Patent

FAO(OS) (COMM) 147/2025 Page 6 of 54

Claim 1 as well as the dependent Claims, including Claims 2, 4, 5 and 9 of

the suit patent.

3.2. He states that the learned Single Judge, having correctly found that

the Respondent’s ‘Find Device’ feature is non-erasable and stored in ROM,

erred in holding that Element E2 of Independent Claim 1 was not mapped

merely because the Respondent’s impugned device does not contain a ROM

with non-erasable ‘message center number’ or a flash memory with ‘auto

reinstall’ feature. He states that the non-erasable ‘Find Device’ feature

stored in the Respondent’s ROM directly corresponds to the SAE

contemplated under Element E2 of the suit patent, resulting in direct

mapping of Independent Claim 1 with the impugned devices.

3.3. He states that the learned Single Judge incorrectly treated ‘auto-

answer mode’ as referring to automatic answering of incoming phone calls,

whereas Element E3 provides for activation and bringing the ‘system’ into

an ‘auto-answer mode’.

3.4. He states that the learned Single Judge has travelled beyond the

express language of the claims by importing features from the complete

specification which do not form part of the granted claims. He states that the

terms ‘phone’, ‘incoming calls’ or ‘silently’ do not form part of Element E3

or any granted claim.

3.5. He states that the learned Single Judge erred in relying upon portions

of the Description of the Invention concerning silent answering of incoming

calls and treating the same as an essential feature of ‘auto-answer mode’,

despite such limitation not forming part of the granted claims.

FAO(OS) (COMM) 147/2025 Page 7 of 54

3.6. He states that consequently, the finding that the impugned devices do

not map with the suit patent merely because they lack a feature for

automatically answering incoming calls proceeds on an incorrect

construction of Element E3.

3.7. He further states that the finding of the learned Single Judge regarding

non-working of the suit patent is not correct, as reasonable efforts have been

made to commercialise the suit patent through collaborations and licensing

arrangements, and that non-working is not by itself a statutory defence to

infringement. He states that the reliance placed by the learned Single Judge

on Franz Xaver Huemer v. New Yash Engineers

6

is misplaced,

particularly in view of the subsequent decision in Eisai Co. Ltd. v. Satish

Reddy and Another

7

.

3.8. He disputes the finding of delay in filing the suit, and states that

Appellants became aware of the alleged infringement only in 2023 and

approached the Respondent soon thereafter. He states that in any event,

delay cannot defeat statutory patent rights or operate as an absolute bar to

interim relief in an infringement action.

3.9. He states that a strong prima facie case of infringement was

established, and the learned Single Judge has erred on the finding of balance

of convenience and irreparable injury. He states that damages are not an

adequate substitute for protection of patent rights, particularly considering

the Respondent’s alleged financial condition and pending Enforcement

Directorate [‘ED’] proceedings.

6

(1996) SCC OnLine Del 243

7

2019 SCC OnLine Del 8496

FAO(OS) (COMM) 147/2025 Page 8 of 54

SUBMISSIONS ON BEHALF OF THE RESPONDENT

4. Mr. Narayanan, learned counsel for the Respondent submitted that the

Appellants are attempting to advance an entirely new case in appeal

regarding the construction of Elements E2 and E3 of Independent Claim 1.

He submitted that the Appellants’ present contention that Element E2 is

satisfied merely by the existence of a ROM containing the relevant data

(without a message center number), and that ‘auto-answer mode’ in Element

E3 means only remote activation, is inconsistent with the Appellants’ own

pleadings, evidence and claim charts in the suit proceedings, therefore, the

learned Single Judge correctly construed the claims and found no

infringement.

4.1. On Element E2, he submitted that the claim requires the functionality

of automatically reinstalling data when an attempt is made to delete it. The

language of Element E2 refers to flash memory with an auto reinstall option

for reinstalling data, including the message center number, and/or non-

erasable ROM containing such data. He submitted that the Appellants’

attempt to construe Element E2 as being independently satisfied by the mere

presence of the SAE in the ROM containing the relevant data without

message center number finds no support in the infringement case originally

pleaded.

4.2. He relied particularly upon the Appellants’ original plaint, affidavit

and claim chart to demonstrate that the Appellants themselves had initially

relied on installation of third-party anti-theft applications, which as per the

Appellants, rendered the relevant data non-erasable and enabled its

automatic restoration upon deletion, to implement Element E2 in

FAO(OS) (COMM) 147/2025 Page 9 of 54

Respondent’s impugned devices. He therefore stated that the Appellants

cannot now contend that the mere presence of ROM containing the ‘Find

Device’ feature is sufficient. He contended that, had the Appellants

considered storage in ROM alone to be sufficient, there would have been no

occasion for them to rely in the plaint upon third-party software to render the

relevant data non-erasable and capable of automatic restoration.

4.3. The Respondent further submitted that the Appellants’ ROM-based

interpretation is untenable because the message center number cannot

permanently be stored in ROM. He submitted that the message center

number is network/SIM-dependent information which varies between

operators and changes when a different SIM is inserted. He therefore argued

that the claimed mechanism involving retention and subsequent

reinstallation of the message center number is absent from the Respondent’s

impugned devices and that Element E2 is consequently not satisfied.

4.4. On Element E3, he submitted that ‘auto-answer mode’ has a specific

meaning under the patent specification, i.e., automatic answering of

incoming calls without visual or audible indication. He relied on the detailed

description of the suit patent, which describes that the incoming calls are

answered at the first ring without the thief/unauthorized user’s knowledge,

allowing the caller (owner) to hear conversations occurring around the

stolen device. He therefore argued that the Appellants’ attempt to redefine

‘auto-answer mode’ as merely remote activation of the device or activation

of recovery functions is contrary to both the claim language and the

complete specification.

FAO(OS) (COMM) 147/2025 Page 10 of 54

4.5. He further submitted that the Appellants’ own claim chart

8

before the

Single Judge adopted this meaning of ‘auto-answer mode’ precisely; the

claim chart described the functionality as enabling the authorized user to

silently listen to the surroundings of the device, which is consistent with the

definition of the phrase ‘auto-answer mode’ as described in the detailed

description of the suit patent. He argued that therefore the Appellants cannot

adopt a different construction in appeal merely because their original

construction did not establish infringement before the learned Single Judge.

4.6. He also argued that accepting the Appellants’ new construction of

Element E3 would render the claim vulnerable on novelty grounds. He

submitted that remote activation of a lost/stolen mobile device and

communication with such device were already disclosed in prior art

references

9

expressly acknowledged in the suit patent itself, including

references relating to the transmission of signals to locate a mobile station

and communication between a remote server and a wireless device;

therefore, Element E3 cannot properly be construed as covering the generic

concept of remote activation or location tracking. He emphasised that

Element E3 requires activation without visual or voice cues, which is

entirely absent from the Respondent’s ‘Find Device’ functionality.

4.7. He submitted that, for infringement as a whole, all essential elements

of the patented claim must be found in the allegedly infringing product.

Relying on Sotefin SA v. Indraprastha Cancer Society

10

, he argued that

8

At pdf page no. 688 of the Appeal.

9

US 7,103,367 and EP 1684535

10

2022 SCC OnLine Del 516

FAO(OS) (COMM) 147/2025 Page 11 of 54

the Appellants were required to demonstrate the presence of all essential

elements of Independent Claim 1 in the impugned devices and they failed to

do so. He submitted that therefore, Element E2 and E3 are both absent from

the Respondent’s ‘Find Device’ feature.

4.8. He distinguished the actual functioning of Respondent’s ‘Find

Device’ feature from the suit patent. He stated that ‘Find Device’ provides

three principal options: ‘Sound Mode’, which causes the phone to emit a

loud sound; ‘Lost Mode’, which locks the device and displays a message

while still permitting ordinary incoming calls; and ‘Erase Data’, which

remotely deletes the user’s data; and none of these above automatically

reinstalls deleted data or silently answers incoming calls. He stated that the

Respondent’s alleged infringing ‘Find Device’ feature does not enable

recovery of a lost/stolen device.

4.9. He submitted that the Appellants’ claim mapping itself demonstrates

the absence of Element E2 and E3 from the Respondent’s ‘Find Device’

feature. He submitted that the Appellants’ technical material, placed on

record before the learned Single Judge, indicates that the relevant Element

E2 and E3 functionalities could only be achieved by downloading third-

party applications. He submitted that since such applications are neither pre-

installed on the impugned devices nor is their downloading/installing

mandated by the Respondent, therefore, the Respondent’s devices, as

manufactured and sold, cannot be said to infringe the patent.

4.10. He further submitted that the Appellants’ claim mapping was

deficient because it did not actually map the essential limitations of Element

FAO(OS) (COMM) 147/2025 Page 12 of 54

E2 and E3 onto the ‘Find Device’ functionality. He pointed out that the

original claim mapping referred generally to a ‘non-erasable anti-theft tool’

but did not address the specific auto-reinstallation feature, the non-erasable

message center number, or silent automatic answering of incoming calls; the

absence of even one [1] essential element is sufficient to defeat the

infringement claim.

4.11. He submitted that the learned Single Judge’s finding that there is a

functional distinction between the suit patent and ‘Find Device’ is precise.

He relied on the finding that the Respondent’s impugned devices do not

possess silent auto-answering and do not contain the claimed flash memory

reinstallation mechanism, and its ROM does not have a message center

number. He submitted that the learned Single Judge correctly concluded that

no prima facie case of infringement of Independent Claim 1 had been

established.

4.12. He also submitted that the dependent Claims cannot independently

sustain an infringement action once Independent Claim 1 is not infringed.

He stated that since dependent Claims incorporate the limitations of the

Independent Claim, failure to establish infringement of Independent Claim 1

necessarily means that the alleged infringement of the dependent Claims

also fails.

4.13. On non-working of the suit patent, he submitted that the Appellants

are effectively non-practising entities and that Form 27 demonstrates that the

suit patent was not worked for substantial periods. He argues that, under the

principle recognised in Franz Xaver Huemer v. New Yash Engineers

FAO(OS) (COMM) 147/2025 Page 13 of 54

(supra), a patentee who has not worked its patent in India may be refused an

interim injunction. He therefore submitted that the limited extent of working

is an additional reason for denying interim injunction.

4.14. He submitted that the impugned devices have been marketed in India

since 2014, whereas the suit patent was granted in 2010 and the suit was

filed only in 2023. He therefore characterizes the delay as an unexplained

delay of more than nine [9] years. He submitted that the Appellants’

assertion that they first became aware of infringement in January 2023 is

unsatisfactory, particularly because the records (i.e., Form 27) filed along

with the plaint allegedly showed that they were aware of other smartphone

manufacturers using similar technology much earlier.

4.15. He submitted that the Appellants have failed to satisfy any of the

requirements for interim injunction. He contended that there is no prima

facie case because the essential elements of E2 and E3 are absent; the

allegation of infringement is based on speculation concerning generic

Android functionality and third-party applications rather than the actual

implementation in the impugned devices; and the balance of convenience

lies with the Respondent, whose products have been widely sold since 2014.

The Respondent therefore seeks dismissal of the present appeal with costs.

FINDINGS AND ANALYSIS

5. This Court has heard the learned counsel for the parties and perused

the record.

6. At the outset, we note that the Respondent has contended that the

pleas raised by the Appellants in the present appeal for assailing the

FAO(OS) (COMM) 147/2025 Page 14 of 54

impugned judgment, particularly with respect to the construction and scope

of Elements E2 and E3 of Independent Claim 1 of the suit patent, travel

beyond the case pleaded before the learned Single Judge. It is contended that

the Appellants are seeking to set up a new case in appeal. In order to address

this objection of the Respondent, and to avoid any controversy, we have

examined the correctness of the findings of the learned Single Judge with

reference to the pleadings in the suit, the complete specification of the suit

patent and the material placed on record before the learned Single Judge.

I. Scope of Interference by this Court in the present Appeal

7. Before proceeding to deal with the challenges raised by the

Appellants in the present appeal, we deem it appropriate to refer to the

judgment of the Supreme Court in Wander Ltd. v. Antox (India) Pvt.

Ltd.

11

which sets out the limits and nature of jurisdiction exercised by the

Appellate Court and the scope of interference permissible, while hearing an

appeal against an interim injunction in intellectual property matters. The

relevant paragraph 14 reads as under: -

“14. The appeals before the Division Bench were against the exercise of

discretion by the Single Judge. In such appeals, the appellate court will not

interfere with the exercise of discretion of the court of first instance and

substitute its own discretion except where the discretion has been shown to

have been exercised arbitrarily, or capriciously or perversely or where the

court had ignored the settled principles of law regulating grant or refusal of

interlocutory injunctions. An appeal against exercise of discretion is said to

be an appeal on principle. Appellate court will not reassess the material and

seek to reach a conclusion different from the one reached by the court below

if the one reached by that court was reasonably possible on the material.

The appellate court would normally not be justified in interfering with the

exercise of discretion under appeal solely on the ground that if it had

considered the matter at the trial stage it would have come to a contrary

11

1990 Supp SCC 727

FAO(OS) (COMM) 147/2025 Page 15 of 54

conclusion. If the discretion has been exercised by the trial court reasonably

and in a judicial manner the fact that the appellate court would have taken a

different view may not justify interference with the trial court’s exercise of

discretion. After referring to these principles Gajendragadkar, J. in Printers

(Mysore) Private Ltd. v. Pothan Joseph

2

:

“... These principles are well established, but as has been observed by

Viscount Simon in Charles Osenton & Co. v. Jhanaton

3

‘...the

law as to the reversal by a court of appeal of an order made by a judge

below in the exercise of his discretion is well established, and any

difficulty that arises is due only to the application of well settled

principles in an individual case’.”

[Emphasis Supplied]

7.1. The aforesaid principle has been reiterated by the Supreme Court

recently in Pernod Ricard v. Karanveer Singh Chhabra

12

, the relevant

paragraph reads as under:

“19.8. In Wander Ltd., this Court elaborated the principles governing the

grant or refusal of interim injunctions in trademark infringement and

passing off actions. It was underscored that appellate courts ought to be

circumspect in interfering with the discretionary orders of lower courts in

such matters. Interference is warranted only where the discretion has been

exercised arbitrarily, capriciously, perversely, or in disregard of settled legal

principles.”

[Emphasis Supplied]

7.2. These principles were summarized by the coordinate Division Bench

of this Court in Sanjay Gupta and Vinay Gupta v. Vineet Jain,

Proprietor of Vijaypal Vineet Kumar and Co.

13

, to state that in an appeal

against an interlocutory order passed by the Commercial Court, the

Appellate Court would not substitute its subjective view for the view

adopted by the Commercial Court. It is only if the Commercial Court errs in

principle that the Appellate Court would interfere; otherwise, factual and

12

2025 SCC OnLine SC 1701

13

2026 SCC OnLine Del 1862

FAO(OS) (COMM) 147/2025 Page 16 of 54

discretionary evidence and findings of the Commercial Court are ordinarily

immune from interference in an appeal.

8. We also note that the suit patent was applied for on 17.10.2006,

granted on 28.12.2010 and shall expire on 17.10.2026. Thus, any injunction

granted by this Court will have a life span of less than two [2] months. The

Respondent contends that it has been selling its products containing the

alleged infringing feature ‘Find Device’ in India since 2014, which is not

disputed by the Appellant. The suit has been filed by the Appellant only in

2023. These facts brings to our minds, the view taken by the coordinate

Division Bench of this Court in Novo Nordisk A/s v. Dr. Reddy’s

Laboratories Ltd. & Anr.

14

, wherein the Division Bench observed that in

such cases the application of principles of balance of convenience and

irreparable loss to the Respondent have to be considered with equal force

and the issue should not be limited to addressing the prima facie merits of

the case. We deem it appropriate to set out the relevant paragraph nos. 3, 4,

10 and 11 of the said judgment, which read as under: -

“3. Thus far, we have no issue. What perturbs us is the fact that this appeal

has been preferred when the suit patent itself is to expire on 20 March 2026.

On the date when this appeal was argued before us, and judgment was

reserved, a little over two months remained, for the suit patent to

expire. It is not the appellant’s case that the respondent is manufacturing

sub-standard drugs. In any event, after 20 March 2026, the appellant would

no longer be able to enforce the suit patent, and it would be open to

exploitation by the world at large.

4. What irreparable loss, we ask ourselves, is the appellant suffering, as a

result of the impugned judgment? Why, for that matter, should we even

spend valuable time of the Court when a mere two months were left for the

suit patent to expire? When Courts are inundated with cases, of far greater

urgency, which it has no time to decide, should we at all entertain such an

14

2026: DHC: 1911-DB, at paragraph nos. 1 to 11.

FAO(OS) (COMM) 147/2025 Page 17 of 54

appeal? Is the appeal not liable to be dismissed even on the principles of

balance of convenience and irreparable loss, de hors the merits of the case?

…

10. We reiterate that our concern is only with a case such as this, in

which only two months were left for the suit patent to expire even when

we reserved judgment. No one, therefore, would stand to benefit, even if

we were to injunct the respondents for two months. Would the interests

of justice, in such a case, be not sufficiently safeguarded by directing the

respondents to maintain accounts of the returns from sale of the allegedly

infringing drug, for these two months?

11. We sincerely feel that, in such cases, the Court must, apart from

addressing itself to the merits of the matter, also consider whether,

applying the principles of balance of convenience and irreparable loss,

it should interfere. This is especially so as, in Wander Ltd v. Antox

(India) Pvt Ltd

2

and Pernod Ricard v. Karanveer Singh Chhabra

3

, the

Supreme Court has clearly held that such appeals are merely appeals on

principle, and that the appellate Court should not disturb the findings of the

Commercial Court, unless they err on principle.”

[Emphasis Supplied]

9. Keeping in view the aforesaid principles, we shall examine the

present appeal within these limited parameters and determine whether any

error in principle has been committed by the learned Single Judge

warranting interference by us. Also, since the balance of convenience is in

favour of the Respondent, would an injunction be justified two [2] months

prior to the expiry of the suit patent.

II. Findings of the learned Single Judge

10. We, first, proceed to set out the findings in the impugned judgment,

which have led the learned Single Judge to conclude that prima facie the

Respondent’s ‘Find Device’ feature does not infringe the Independent Claim

1 of suit patent, leading to the dismissal of the injunction applications:-

FAO(OS) (COMM) 147/2025 Page 18 of 54

10.1. Learned Single Judge held that, in law, the features covered in the

Independent Claim 1 of the suit patent that solve the problem of the prior

art(s) are to be considered as the essential features of the suit patent.

10.2. After referring to the Section titled ‘Prior Art’ in the complete

specification of the suit patent, learned Single Judge took note of the

declaration made by the patentee, in the said section, as regards the problem

the invention seeks to solve, and concluded that the invention claimed in the

suit patent seeks to enable locating and recovering a stolen phone/device, by

the owner, from a thief, who might change/remove the SIM card or attempt

to disable the security feature by deleting its software or altering the

message center number.

10.3. Learned Single Judge also referred to the Section of the complete

specification titled ‘Object of the Invention’ and summarized the main

objects of the invention in the suit patent at paragraph 18 of the impugned

judgment, which has been reproduced at paragraph 36 of this judgment.

10.4. After referring to the table set out by the Appellants in the plaint,

learned Single Judge concluded that the Independent Claim 1 of the suit

patent comprises three Elements i.e., E1, E2 and E3.

10.5. Learned Single Judge concluded that in a patent, the invention is

described where the expression ‘characterized’ is used in the Independent

Claim 1. Applying this legal principle, on a perusal of the Independent

Claim 1 of the suit patent, the learned Single Judge concluded that the

Elements, i.e., E2 and E3, follow the expression ‘characterized in that’ and

FAO(OS) (COMM) 147/2025 Page 19 of 54

therefore these are the novel features of the ‘Communication Device Find

System’, as claimed in the suit patent.

10.6. Learned Single Judge held that the Element E2 comprises of a flash

memory that can auto-reinstall the relevant data associated with SAE

including a message center number against an attempt to delete the same

and/or non-erasable ROM containing such data.

10.7. Learned Single Judge held that the Element E3 comprises the

characteristic feature of a trigger mechanism for activating the SAE by the

authorized user/owner which brings the phone into ‘auto-answer mode’

silently, without visual cues and voice cues, either through a

telecommunication service provider network on being triggered from

another phone or through internet from a predetermined Internet Protocol

(IP) address or on entering of an incorrect PIN

15

/password with or without

SIM change.

10.8. After perusing the Appellants’ claim mapping in the plaint, learned

Single Judge held that the same is flawed as it fails to identify or

demonstrate the presence of ‘all’ essential features of the Independent Claim

1 of suit patent i.e., Element E2 and E3, in Respondent’s impugned devices.

10.9. With respect to Element E2, learned Single Judge held that although

the ‘Find Device’ feature in Respondent’s impugned devices is non-erasable

and stored in ROM, however, the said impugned devices do not contain

flash memory with the critical reinstallation feature and/or ROM with a non-

erasable message center number. With respect to Element E3, the learned

15

Personal Identification Number

FAO(OS) (COMM) 147/2025 Page 20 of 54

Single Judge held that the ‘Find Device’ feature in the Respondent’s devices

does not enable an ‘auto-answer mode’ that would allow incoming calls to

be silently and automatically answered on the stolen device without the

thief/unauthorized user’s knowledge. Thus, learned Single Judge concluded

that there is a functional distinction between the Respondent’s ‘Find Device’

feature and the invention of ‘Communication Device Finder System’ i.e., the

suit patent.

10.10. Learned Single Judge construed the meaning of term ‘auto-answer

mode’ appearing in Element E3 in light of the definition provided by the

patentee in the complete specification of the suit patent. Learned Single

Judge opined that, as per the stated definition, this mode enables an

incoming call to be automatically answered, silently, without the knowledge

of the thief/unauthorized user getting to know about the incoming call,

thereby allowing the caller (i.e., the owner who has lost the phone) to hear

the conversations occurring around the stolen device without the

thief/unauthorized user’s knowledge. Learned Single Judge concluded that

this essential feature of Element E3 is admittedly unavailable in the

Respondent’s ‘Find Device’ feature. This finding led the learned Single

Judge to conclude that infringement of Element E3 of Independent Claim 1

is not satisfied.

10.11. Learned Single Judge found that the Appellants’ claim mapping is

fundamentally flawed, as the mapping of Independent Claim 1 referred only

to a ‘non-erasable anti-theft tool’ in the impugned devices and did not

demonstrate the presence of the other essential features of the suit patent,

FAO(OS) (COMM) 147/2025 Page 21 of 54

i.e., Elements E2 and E3 in the ‘Find Device’ feature available on the

Respondent’s devices.

10.12. Learned Single Judge held that, for determining infringement, all

essential elements in the Independent Claim 1 of the suit patent should be

found present in the alleged infringing product. It held that the features in

the suit patent which solve the problems identified in the prior arts are

essential features. Learned Single Judge concluded that the features of

Element E2 and E3 constituted essential elements of the suit patent. Learned

Single Judge held that since Elements E2 and E3 were absent in the ‘Find

Device’ feature of Respondent’s impugned devices, consequently, the

Appellants could not succeed in their applications merely by pointing to the

general similarity between the two systems.

10.13. In view of the above, the learned Single Judge held that the

Appellants had failed to establish a prima facie case of direct infringement

of Independent Claim 1 by the Respondent’s impugned devices.

10.14. Further, learned Single Judge held that since the Respondent’s

impugned devices do not infringe Independent Claim 1 of the suit patent, the

Appellants cannot sustain the plea of infringement on the basis of the

dependent Claims 2 and 9 relating to location tracking, dependent Claim 4

relating to play sound and dependent Claim 5 relating to deleting phonebook

data.

10.15. As a separate ground against granting interim injunction, the learned

Single Judge, after perusing the Form(s)-27 filed by the Appellants before

the patent office for the years 2011-2022, observed that the suit patent has

FAO(OS) (COMM) 147/2025 Page 22 of 54

hardly been worked in India. Relying on Franz Xaver Huemer v. New

Yash Engineers (supra), the Court held that the limited working/non-

working of the patent was a factor against grant of interim injunction.

10.16. Learned Single Judge further held that there was an inordinate and

unexplained delay of nine [9] years in filing the suit. Although the

Appellants claimed that knowledge of infringement arose only in January

2023, the Court noted that the Respondent’s impugned devices were being

sold in India since 2014 and that the Appellants’ own Form-27 filed before

the patent office for the year 2015 acknowledged awareness of other

allegedly infringing global smartphone manufacturers. The delay of

approximately nine [9] years was, therefore, treated as a distinct factor

disentitling the Appellants to interim relief. The Court accordingly held that

the balance of convenience lay in favour of the Respondent and that

restraining the Respondent from selling the impugned devices in India

would result in irreparable prejudice and undue hardship to it.

10.17. The learned Single Judge also found no substance in the submission

of the Appellants that Respondent was not in a good financial condition to

satisfy a decree of damages that may be passed against the Respondent upon

final adjudication of the suit.

11. Having considered the findings of the learned Single Judge, we find

no infirmity in the legal principle followed by the learned Single Judge that

the features covered in the Independent Claim 1 that solve the problem of

the prior art(s) are to be considered to be the essential features of a patent,

and the plaintiff must prima facie demonstrate that the said essential features

FAO(OS) (COMM) 147/2025 Page 23 of 54

are present in the defendant’s alleged infringing devices. The Appellant has

not challenged the aforesaid legal principle followed by the learned Single

Judge. We also find no ground to disagree with the legal principle followed

by the learned Single Judge that where the essential features of the

Independent Claim 1 of the suit patent are prima facie not proved to exist in

the defendant’s alleged infringing devices, it is not necessary for the Court

to proceed to examine the allegation of infringement of dependent Claims.

The Appellant has challenged this legal principle followed by the learned

Single Judge, however, it has been unable to substantiate its challenge. We

therefore, find no ground to interfere with the said legal principle followed

by the learned Single Judge qua the non-examination of the alleged

infringement of dependent Claims.

11.1. The Appellant has however, challenged the findings of the learned

Single Judge with respect to non-existence of the Elements E2 and E3 of

Independent Claim 1 in the Respondent’s impugned devices. In this

judgment, we shall therefore, examine the Appellant’s claim of existence of

infringement in respect of Elements E2 and E3 of the Independent Claim 1

in the Respondent’s device.

11.2. As regards the existence of Element 1 of the Independent Claim 1 in

Respondent’s impugned device, there is no dispute between the parties.

III. Purpose of the Appellant’s ‘Communication Device Finder System’ vis-à-vis

the Respondent’s ‘Find Device’ feature

12. The Appellant’s invention was conceived by the patentee with an

intent to solve a specific problem. The Appellant No. 2 is stated to have

worked for almost two [2] years on the invention following a burglary at his

FAO(OS) (COMM) 147/2025 Page 24 of 54

premises, with the objective of developing software capable of finding a

stolen communication device and thereafter remotely controlling, tracking,

monitoring and retrieving the same, without the assistance of the

enforcement agencies. The suit patent invention was, therefore, aimed at

addressing the specific challenges faced by an authorized owner upon theft

of the device to retrieve the stolen device, particularly to overcome the

measures that a thief/unauthorized user could adopt to circumvent or disable

the existing anti-theft mechanisms in the stolen phone.

The principal intention behind the invention was to develop software

having anti-theft features, particularly in view of the increasing incidence of

theft of mobile devices.

13. The Appellants, in the plaint, have averred that the anti-theft

technologies available in the prior art(s) were rendered ineffective in

circumstances, where the thief/unauthorized user took steps to prevent the

stolen or lost communication device from being monitored, tracked, or

retrieved. The shortcomings identified by the Appellants included, inter alia,

that a stolen or lost device could not be remotely controlled, monitored or

located once the security element existing in the phone was deleted by hard-

resetting or formatting the device; that the device could not be connected to

the telecommunication service network server once the SIM was removed or

Wi-Fi/mobile data was disconnected; and that the security element could not

communicate with the predetermined server or pre-designated alternative

communication device, whether through messaging or voice calls, when the

device had no SIM or internet connectivity. The Appellants further averred

that in the existing software modules, server particulars, user credentials,

FAO(OS) (COMM) 147/2025 Page 25 of 54

emergency calling numbers, messaging center number and other device

particulars were not non-erasably stored in the flash memory or ROM of the

communication device. It was pleaded that the existing location tracking

technologies were incapable of providing the location of the stolen device

when GPS had been disabled by the unauthorized user. The Appellants

asserted that the prior art(s) did not provide for the performance of requested

actions in a ‘ghost mode’, i.e. without audio visual indications, which could

alert the thief/unauthorized user that the device was being monitored or

controlled. These shortcomings, according to the Appellants, necessitated

the invention claimed in the subject patent. The relevant paragraphs of the

plaint read as under: -

“5. It took the second Plaintiff 2 years of hard work and study to develop

the invention of the subject patent. While going through the available prior

arts on the subject, the second Plaintiff realized that the existing anti-theft

technologies were rendered ineffective upon the thief or the unauthorized

user performing certain action(s) with the stolen communication device to

prevent it from being monitored, tracked, gather evidence(s) or being

retrieved. The existing anti-theft technologies in the prior art had the

following shortcomings:

(i) A stolen/lost communication device could not be remotely

controlled, monitored, located or retrieved, once the thief deletes the

software activation element by either hard-resetting or formatting the

communication device.

(ii) A stolen/lost communication device could not be connected to the

server once the thief/ unauthorized user removes the SIM from the

device, disconnects its Wi-Fi/Mobile data and/or deletes the message

centre number.

(iii) The security activation element in the stolen/lost communication

device could not communicate with the pre-determined/designated

server or predesignated alternative communication device, either

FAO(OS) (COMM) 147/2025 Page 26 of 54

through messaging or voice calls, when the device is not having the

SIM or internet connectivity.

(iv) The software modules along with pre-determined and designated

server IP address, Mail address, SOS numbers, user credentials,

predesignated emergency calling numbers, messaging centre number,

device particulars and calling server numbers were not Non-erasably

stored in the flash memory by the owner of the device or in the ROM

by the device manufacturer of the communication device was not

available in the existing technologies at that time.

(v) The location tracking features available in existing technologies

were not able to provide the location of the stolen device when the

GPS was disabled by the unauthorized user/thief.

…….…

(vii) The feature to perform the requested actions in the ghost mode,

i.e., without audio visual indications, is not available in the existing

technologies when a command is received from the authorized user's

predesignated alternative mobile number or predesignated server,

when the device is stolen/ Lost is not available in the prior art.”

[Emphasis Supplied]

14. In furtherance of the above, the Appellant contended in the plaint that

the features and functioning of the suit patent include, inter alia, a SAE

which can be activated and controlled by the authorized owner of the phone

and which, upon theft or loss of the device, enables the authorized user to

remotely access and control the device. As per the suit patent, significantly,

the SAE continues to remain functional even upon a change of the SIM card

by a thief/unauthorized user, thereby enabling the authorized user to

remotely perform various functions, including sending and receiving

messages and e-mails, making voice calls, obtaining the location of the

device, generating voice messages, displaying visual messages, automating

calls to emergency numbers, recording incoming and outgoing calls and

FAO(OS) (COMM) 147/2025 Page 27 of 54

capturing screen content. The Appellant further contended that the SAE is

non-erasably installed either in the flash memory of the communication

device, with an auto-reinstall feature, or in the ROM of the device by the

manufacturer, thereby preventing its removal by the unauthorized user. It

was further contended that the suit patent provides an ‘auto-answer mode’ in

combination with a silent mode, whereby incoming calls to the stolen device

are automatically answered without the knowledge of the unauthorized user,

thereby enabling the authorized user to hear the surrounding conversation.

Further, the suit patent provides for tracing the location of the lost or stolen

device even when the GPS is disabled, by identifying the nearest three [3]

transmitting towers and the signal strength received from such towers.

Relevant paragraphs of the plaint read as under: -

“7. The features and functioning of the subject patent are given herein

below:

(i) The security activation element can only be activated and

deactivated by the authorized owner of the communication device

and/or only by the consent / knowledge of the authorized owner of the

communication device.

… … …

(iii) The security activation element provides remote access to the

authorized user/original owner of the device after the communication

device is stolen/lost and is in possession of the third

party/unauthorized user. The actual owner and/or any agency

(authorized by the owner) can remotely access the device and can

perform (a) sending/receiving SMS/ MMS/ e-mails/snaps/videos to /

from the lost/stolen device; (b) making voice calls; (c) providing the

current location of the lost device; (d) generating and playing voice

messages in the stolen device; (e) displaying visual messages on the

device; (f) automating calls to emergency numbers; (g) recording of

both incoming and outgoing calls; and (h) capturing screen content

and sending across through the MMS.

FAO(OS) (COMM) 147/2025 Page 28 of 54

(iv) The security activation element and its functionalities (as

mentioned in the preceding paragraph) can be controlled by the

authorized user/owner remotely by means of internet/calls/SMS, even

when the Subscriber Identity Module (SIM) of the communication

device is changed by the unauthorized user.

(v) The security activation element comprises of software module(s)

non-erasably installed on flash memory of the communication device

by the authorized owner, after the purchase of the device. The

security activation element is made non-erasable by installing an

auto-reinstall feature set. Another way to achieve non-erasability is

to provide the security activation element in the ROM by the

manufacturer at the time of manufacturing the communication device.

(vi) The security activation element comprises of an "auto answer

mode" which is set ON along with a "silent mode" so that all

incoming calls to the communication device are answered at the

first ring without the thief/Unauthorized user's knowledge. This

would allow the caller (investigator or owner) to hear the conversation

(with outsiders) of the person having the stolen communication

device.”

[Emphasis Supplied]

15. The Appellants’ Scientific Advisor’s analysis set out in the plaint at

paragraph no. 17 mentions that the features of the claimed SAE in the suit

patent comprise flash memory and/or ROM, together with the facility to

install non-erasable software or applications containing, inter alia, the server

IP address, message center number, SOS numbers and emergency contact

details. The relevant part of paragraph no. 17 of the plaint reads as under: -

“Claims of

Patent No.

244963

Scientific advisor's opinion after analysis

C1-E2 It is mentioned in the page no-5, para no-5 of the patent

specification document as "The security activation

device comprises software modules installed on the

FAO(OS) (COMM) 147/2025 Page 29 of 54

flash memory in the device by the authorized owner.

After analysing the patent specification, drawings,

element E2 of the claim C1, standards and this claim

element E2 mapping, I found that, it is mentioned in the

subject patent as the mobile device is provided with the

security activation element (System-on-Chip

(SOC)/Chipset) comprising flash memory allowing

device owner to download & install any Non-erasable

software/application having anti-theft features

including data containing the server IP address,

message centre number of the operator, SOS

numbers, Device owner alternative emergency

contact number and other user credentials like mail

id, mobile number, device particulars etc., and/or

ROM for installing the same software/application

and other data to achieve the non-erasability as

mentioned above. The same is also mentioned as the

requirements of both the standards.

Hence, I am of the opinion that, the element E2 of the

claim C 1 is available as identical in both the standards.

C1-E3 It is mentioned in the page no-5, para no-5 of the patent

specification document as "The security activation

device comprises software modules installed on the

flash memory in the device by the authorized owner.

After analysing the specification, drawings, element E3

of Claim C1, standards and mapping of this claim

element E3, I found that, there are 3 ways mentioned in

the subject patent for triggering to activate the security

activation element of the mobile device for performing

specific anti-theft functions, and the same 3 methods are

also mentioned in both the standards for triggering the

Chipset of the mobile device for executing the "Kill

Switch Tool" anti-theft features. As per the "CTIA Anti-

theft Voluntary commitment" the device owner is

permitted by the Google's Android OS itself to use

available additional technological solutions (bringing

into "Auto Answer mode" of the device, and activation

accompanying without visual ques and voice ques).

FAO(OS) (COMM) 147/2025 Page 30 of 54

Hence, I am of the opinion that, the "communication

device finder system" described in the element E3 of

Claim C1 is mentioned as same as in both the

standards.”

[Emphasis Supplied]

16. It prima facie appears to us that the features of Element E2 set out in

the Scientific Advisor’s Opinion, as per the Appellant’s own understanding,

have to exist in the SAE to enable the operation of the invention of the suit

patent to trace and retrieve the stolen device. This includes the message

center number. The Appellants therefore, have to show as to how the ‘Find

Device’ feature in the Respondent’s impugned devices has the essential

features of Element E2 and E3.

17. The purpose of Respondent’s ‘Find Device’ feature, as submitted by

the Respondent, is to play sound on the device [sound mode], initiate lost

mode to remotely lock the device [lost mode], and erase data from the

device [erase mode]. In sound mode, a user can play sound at the maximum

volume, which cannot be controlled by a thief/unauthorized user. In lost

mode, the phone gets locked, and a message to that effect is displayed on the

stolen/lost device. In this mode, the unauthorized user can receive calls so

long as the original SIM is in the phone, but there is no feature of auto-

answering the incoming calls in a silent mode without knowledge of the

thief/unauthorized user. In erase mode, the authorized user can wipe out all

personal data from the device to prevent it from being misused. It is also

averred that the ‘Find Device’ feature becomes inoperable if the

thief/unauthorized person resets the device to its factory settings, and the

same would result in the loss of access to the Respondent’s impugned device

FAO(OS) (COMM) 147/2025 Page 31 of 54

even through internet browser including the authorized user’s Xiaomi

account

16

.

18. Thus, as per the pleadings of the Appellant, the essential feature of the

suit patent is the continued ability of the authorized owner to locate, monitor

and remotely control the stolen device through the SAE, including by

activating the ‘auto-answer mode’ silently upon being triggered, so as to

retrieve the phone, even if the SIM is removed by the thief/unauthorized

user. This is the Appellants’ anti-theft measure. The protection or erasure of

data from the stolen device is a dependent Claim and not the substitute for

the essential feature of Independent Claim 1.

19. Learned Single Judge, at paragraph 34 of the impugned judgment, has

distinguished the object and functioning of the suit patent from the

Respondent’s ‘Find Device’ feature, holding that the former enables the

owner to locate and recover the stolen device, whereas the latter is intended

primarily to protect data by remotely locking or erasing it and does not

enable monitoring of the stolen device. We are in agreement with this prima

facie finding of the learned Single Judge. In our view, considering the

discussion hereinabove, this distinction goes to the very essence of the

claimed invention and demonstrates that the mere presence of a ‘Find

Device’ feature which permits locking or erasing of data cannot, by itself,

amount to the infringement of the essentials of SAE claimed in the suit

patent which are, essentially, intended to retrieve a stolen phone from the

thief.

16

A single user profile held by the authorized user of Respondent’s device on Respondent’s Xiaomi Cloud.

FAO(OS) (COMM) 147/2025 Page 32 of 54

IV. Alleged infringement of Element E2 of Independent Claim 1

20. The Appellant has contended that the scope of Element E2 of

Independent Claim 1 covers providing the security feature SAE in a non-

erasable manner. It is stated that the same is achieved by: (i) either a flash

memory implementation where the data (software of the SAE including

message center number) is stored in the flash memory with an auto reinstall

feature; and/or (ii) a ROM implementation where the said data is stored in

the ROM of the device, thus making it non-erasable.

The Appellants contend that the aforesaid two implementations can be

asserted disjunctively.

20.1. The finding of the learned Single Judge that Respondent’s ‘Find

Device’ feature does not infringe Element E2 of Independent Claim 1 has

been challenged by the Appellants by contending that existence of the ROM

implementation in the Respondent’s impugned devices, where the data of

SAE is stored in the ROM of the device, making it non-erasable,

individualistically satisfies Element E2 of the Independent Claim 1 of the

suit patent. It is contended that the learned Single Judge’s finding at

paragraph 33 of the impugned judgment that both the flash memory

implementation and ROM implementation must exist in the infringing

device to comply with Element E2 is incorrect, as these are two alternative

implementations.

20.2. It is also contended that the finding of the learned Single Judge that

Element E2 in Independent Claim 1, while referring to ROM

implementation of SAE, includes storage of message center number in the

FAO(OS) (COMM) 147/2025 Page 33 of 54

ROM is incorrect, as this is technically impossible to achieve. It is

contended that this technical impossibility is also admitted by the

Respondent.

21. Respondent has contended that the contention of the Appellants that

mere presence of the ROM containing the relevant data of the SAE in the

Respondent’s impugned devices covers Element E2 of Independent Claim 1

finds no support in the infringement case originally pleaded in the plaint, the

technical expert affidavit and the claim chart relied upon by the Appellant in

the suit proceedings before the learned Single Judge. The Respondent has

contended that, as per the Appellants’ pleaded case before the learned Single

Judge, the SAE data, including the message center number, is required to be

preserved in both the flash memory and the ROM, and such preservation in

the Respondent’s impugned devices is achieved through the installation of

third-party software.

21.1. It is contended that the Appellants have sought to set up a new case in

appeal which is inconsistent with the case pleaded before the learned Single

Judge. The Respondent has contended that the learned Single Judge has

construed Element E2 exactly as pleaded by the Appellants in the suit. The

Respondent’s submissions in relation to this claim are set out in Section B of

the written submissions filed before us.

22. In view of the aforesaid submissions of the parties, we deem it

appropriate to refer to the case set up by the Appellants at paragraph 34 of

the plaint with respect to the opinion of its technical expert on the method of

implementation of Element E2 feature of Independent Claim 1 in the

FAO(OS) (COMM) 147/2025 Page 34 of 54

Respondent’s impugned devices for demonstrating infringement. The

relevant extract of the table reads as under: -

Claims of

Patent

No.

244963

Opinion after Analysis

C1-E2 After a thorough analysis of complete specification,

drawings and this element E2 of claim C1, the claim

mapping of Element E2 of Claim C1 of the subject patent

and the Xiaomi device's architecture, I found that:

The identical security activation element comprising the

flash memory and the ROM with the similar provisions as

specified in the element E2 of the claim C1 are also present

in Xiaomi devices, and it is also found that, the open source

Android OS is also used as an operating system, which

allows the mobile device owner to download and install

third-party Non-erasable Anti-theft mobile device

security apps and to make the data (software module)

including the message center number Non-erasable in

the flash memory in its devices (according to the "CTIA

Anti-Theft Voluntary Commitment -Part-I (b)").

It is also evident that the EMM-distribute, data-storage,

Factory Reset Protection Policy, Recovery System, Device

Policy Manager and device-admin APIs/Features of OS

helps the Find device/Find my device applications and/or

the other applications mentioned in the mapping section to

perform the functionality recited in the particular claim.

Hence, I am of the opinion that, the element E2 of the claim

C1 is implemented in Xiaomi devices.

23. In the plaint, as is seen hereinabove, the Appellants have pleaded that

the SAE is comprised in the flash memory and the ROM with similar

provisions as specified in Element E2, in the Respondent’s devices. It is also

FAO(OS) (COMM) 147/2025 Page 35 of 54

pleaded that the open-source Android OS used in the devices allows the

mobile device owner to download and install third-party security

applications to make the SAE, including the message center number, non-

erasable in the flash memory in its devices.

24. In contrast, the Appellants in the written submissions filed before this

Court have now sought to demonstrate the implementation of Element E2 in

the Respondent’s devices in the following manner: -

The aforesaid extract of the written submissions shows that Appellants

have now sought to limit their claim of implementation of Element E2 of

Independent Claim 1 in the impugned devices on the sole fact of existence

of the data of SAE in the ROM without any message center number.

25. We, thus, find merit in the submission of the Respondent that the

pleading at paragraph 34 of the plaint is at variance with the written

submissions of the Appellant placed before us vis-à-vis its allegations qua

the infringement of Element E2 of Independent Claim 1. In our considered

opinion, the stand now taken by the Appellants is a post-facto

FAO(OS) (COMM) 147/2025 Page 36 of 54

reconsideration of their infringement claims in view of the negative findings

returned by the learned Single Judge on infringement of Element E2. The

Appellants have sought to oversimplify the alleged infringement of Element

E2 in this appeal, and it appears to be a distortion of the claim qua Element

E2 made in the suit patent.

26. The Appellants have contended that the finding of the learned Single

Judge at paragraph 35 of the impugned judgment that since the ‘Find

Device’ feature on the Respondent’s impugned device though stored in

ROM does not have a non-erasable message center number and therefore,

there is no infringement of Element E2, is incorrect, as the suit patent in the

Independent Claim 1 does not contemplate that the SAE installed in the

ROM would contain a message center number.

27. We are not in agreement with the submissions of the Appellant.

As is evident from the opinion of the Appellants’ own technical

expert, and by the plain language of Element E2 in the suit patent, the

objective of Element E2 is to ensure that the relevant data [pleaded at

paragraph 17 and para 34 of the plaint] forming part of the SAE remains

non-erasable after the phone is stolen, so as to permit the authorized user to

connect with the stolen phone by sending messages and making calls so as

to take measures to retrieve it. Learned Single Judge has, therefore, taken

plausible and legally sustainable view of Element E2 feature in holding that

the relevant data, including the message center number, is required to be

stored in the flash memory and/or ROM in a manner that renders the same

non-erasable. Such an interpretation is consistent with the plain reading of

the language of Element E2, since the non-erasable nature of the relevant

FAO(OS) (COMM) 147/2025 Page 37 of 54

data including message center number is what enables the SAE to continue

functioning notwithstanding attempts by a thief/unauthorized user to delete

SAE or change the SIM. The Appellants’ attempt in the appeal to isolate the

ROM implementation of SAE from the requirement concerning the message

center number would, therefore, amount to not reading a material part of

Element E2 of the claim, which must necessarily exist for SAE to function.

The view taken by the learned Single Judge is even, at the very least, a

possible and reasonable construction of the Element E2 based on the

material placed before the Court and, therefore, does not warrant

interference. The plain language of Element E2 reads as under: -

“C1 – Element

2

(C1 – E2)

characterized in that, said device is provided with a

security activation element (7) comprising a flash

memory with auto re-install option set for auto re-

installing data including message center number when

attempt is made to delete it and/or a non-erasable read

only memory (ROM) containing said data,”

28. Even if we were to consider the Appellants newly pleaded case that in

the Element E2, the flash memory and ROM are disjunctive features and the

ROM only has non-erasable SAE without other relevant data including

message center number, in our considered opinion, the Appellants have

failed to explain how the suit patent can perform its intended functions

where the SAE is implemented only in the ROM without existence of the

relevant data including the message center number, as pleaded at paragraph

17 and 34 of the plaint, since now the Appellants themselves contend that

technically a message center number cannot be stored in the ROM.

FAO(OS) (COMM) 147/2025 Page 38 of 54

28.1. The Appellants concede that there is no flash memory in the

Respondent’s devices containing the message center number and other

relevant data contemplated by the Appellants at paragraph 17 and 34 of the

plaint. The existence of non-erasable relevant data including message center

number in flash memory and ROM, as pleaded at paragraph 17 and 34 of the

plaint, is not a mere technical option. In our considered opinion, the message

center number is required for the SAE to send the SMS contemplated by the

invention.

28.2. If, in the Appellants suit patent, there is no flash memory having

message center number in the device and the SAE is only stored in ROM

without message center number, the functionality of SAE on which the

Appellants rely upon to distinguish the invention from the prior art(s), it is

unclear as to how SAE will operate. The Appellants have not identified any

alternative mechanism by which the SAE, in the absence of such non-

erasable message center number in device, would communicate with the

predetermined server or otherwise perform the claimed anti-theft functions

absent a SIM and wireless connection. The Appellants have thus failed to

reconcile their construction of Element E2 with the actual working of the

‘Find Device’ feature in Respondent’s impugned devices. In our considered

view, the Appellants’ interpretation of Element E2 for justifying

infringement does not satisfactorily explain the functioning of the suit patent

when SAE is in ROM without message center number and there is no flash

memory provision for storing non-erasable message center number and other

data in the device.

FAO(OS) (COMM) 147/2025 Page 39 of 54

29. The Appellants have, in their written submissions before us, at

paragraph (iii) of internal page 11, sought to contend that the SAE may be

activated either through the SIM card, which contains the message center

number, or through a Wi-Fi connection. As per the Appellants own

submission before us, upon removal of the SIM card from the device by the

thief/unauthorized user, the message center number stored through the SIM

would no longer be available on the device and the ROM does not have the

details of message center number. This submission of the Appellant is

fundamentally inconsistent with the feature of the Element E2 suit patent

pleaded by them. The purpose of Element E2 requires the relevant SAE

data, including the message center number, to be rendered non-erasable and

capable of reinstallation when stored in a flash memory or ROM. If the

removal of the SIM in the Appellants devices results in the loss of the

message center number, and the message center number is not stored in

ROM, then the existence of non-erasable message center number in the flash

memory which is asserted to ensure continued operation of the SAE in the

suit patent after theft, is rendered unavailable. The non-erasable feature of

message center number which, according to the Appellants’ own case,

constitutes an essential part of the invention. In other words, the Appellants

cannot, on the one hand, assert that the message center number is an

essential, non-erasable component of the SAE when stored on a flash

memory and, on the other hand, contend that the SAE can function without

the message center number when stored in ROM merely because the stolen

device may, in some circumstances, obtain internet connectivity through Wi-

Fi. Such a construction would render the stipulation of message center

number in Element E2 otiose.

FAO(OS) (COMM) 147/2025 Page 40 of 54

30. In the written submissions, the Appellants have relied on possibility

of connectivity of the stolen device to the internet via Wi-Fi network, when

the SIM (which contains the message center) is removed, for the working of

the invention i.e. SAE of the suit patent. It is stated that similarly,

Respondent’s ‘Find Device’ feature is also remotely activated either through

SIM or Wi-Fi. Element E1 contemplates the presence of a discrete SIM in

the communication device for enabling wireless connection of the stolen

device, while Element E2 contemplates the non-erasable storage of the

relevant SAE data, including the message center number, so as to enable the

security mechanism to perform its intended functions of detection following

theft or loss. Appellants’ having pleaded at Element E2 that the SAE is

intended to remain operational notwithstanding the thief/unauthorized user’s

removal of the SIM, the Appellants were required to demonstrate,

consistently with the claim language, how the SAE stored in the ROM could

perform the claimed incoming calls and SMS-based functions of the

invention in the suit patent in the absence of both the SIM and the message

center number. No explanation in this regard has been furnished by the

Appellants. The possibility that a stolen device may, at some later point,

connect to an available Wi-Fi network does not establish that the claimed

SAE present in the ROM can perform its intended functions in the absence

of the SIM enabling wireless connection and the non-erasable message

center number. This is particularly significant in the context of an invention

dating back to 2006, where the patentee has not stipulated that the device is

wireless enabled. Instead, the patentee presumes that the device in Element

E1 shall contain an embedded or discrete SIM which enables a wireless

FAO(OS) (COMM) 147/2025 Page 41 of 54

connection, which connection read with Element E3 will permit making

incoming calls to the stolen device.

31. Therefore, in view of the foregoing, the Appellants have failed to

demonstrate that in Element E2, how the two alleged disjunctive features

can or cannot function without message center number. Thus, the

interpretation of the learned Single Judge that the Respondent’s ‘Find

Device’ feature does not incorporate the essential requirements of Element

E2 of Independent Claim 1, is correct. Accordingly, we find no error in the

reasoning of the learned Single Judge at paragraph nos. 33, 34 and 35 with

respect to the infringement of Element E2 and uphold the finding that the

Respondent’s ‘Find Device’ feature does not infringe Element E2 of

Independent Claim 1 of the suit patent.

V. Alleged infringement of Element E3 of Independent Claim 1

32. Appellants have challenged the findings of the learned Single Judge

with respect to the absence of infringement of Element E3 of Independent

Claim 1. It is stated that since the learned Single Judge noted that the ‘Find

Device’ feature on Respondent’s impugned device can be triggered by

signing into the authorized user’s Xiaomi account through a web browser

using another device, the infringement of the suit patent for this sub-feature

ought to have been returned in favour of the Appellant.

32.1. The Appellants contend that the Respondent’s impugned devices, on

being remotely triggered through the Xiaomi account, come into an ‘auto-

answer mode’ without the user’s involvement. The Appellants contend that

the interpretation given by the learned Single Judge to the aforesaid sub-

FAO(OS) (COMM) 147/2025 Page 42 of 54

feature in Element E3 to be ‘auto-answer mode’ in terms of the definition set

out in the complete specification of the suit patent is erroneous. It is

contended that the said definition of ‘auto-answer mode’ could not have

been read into Element E3 as the same was not envisioned as a claim

limitation.

33. On the other hand, Respondent has submitted that the contentions of

the Appellants in this appeal seeking to substitute the functionality of ‘auto-

answer mode’ to simply mean remote auto activation of a mobile device, is a

position contrary to the stand taken before the learned Single Judge. It is

stated that this construction also finds no support in the complete

specification of the suit patent.

33.1. It is stated that the submission of the Appellant has no resemblance to

the functionality expressly claimed in Element E3, namely, the silent

automatic answering of the incoming calls. It is stated that the pleas raised in

the appeal are contrary to the pleadings in the suit as well as the claim chart.

Respondent has contended that remote auto activation was already known in

prior art as acknowledged in the suit patent and therefore the Appellants

cannot sustain the claim of infringement on this plea as the alleged invention

of the suit patent is ‘auto-answer mode’ as contemplated in the definition

provided in the complete specification so as to enable the owner to listen to

the surroundings of the stolen/lost phone.

34. With respect to Element E3, we have perused the findings of the

learned Single Judge. After referring to the problem identified by the

patentee in the prior arts, object of the invention set out in the complete

FAO(OS) (COMM) 147/2025 Page 43 of 54

specification, description of the infringement in the complete specification,

referring to the breakup of Independent Claim 1 in the plaint, the learned

Single Judge at paragraph 21(iii) of the impugned judgment concluded that

Element E3 of Independent Claim 1 consists of a SAE that activates and

brings the lost/stolen phone into ‘auto-answer mode’ silently without visual

cues and voice cues. The learned Single Judge also, at paragraphs 29 and 30

of the impugned judgment, concluded that the ‘auto-answer mode’ feature

contemplated in the suit patent enables the owner of the lost/stolen phone to

listen to the conversations occurring around the stolen device without the

thief/unauthorized user’s knowledge.

35. Having heard the submissions of the learned senior counsel for the

Appellants and having perused their written submissions, we find that this

finding of the learned Single Judge has been strenuously contested.

Appellants have disputed that the invention was intended to activate the

‘auto-answer mode’ on the lost/stolen device to enable the owner to listen to

the conversations occurring around the stolen device. The Appellants

contend that the learned Single Judge has mistaken the invention to be a

‘snooping device’. We are unable to accept the submissions of the

Appellants in this respect.

36. The learned Single Judge has, in the operative portion of the

impugned judgment beginning from paragraph nos. 14 to 22 and 26 to 31,

undertaken an elaborate analysis of the underlying problem, which, as per

the patentee, existed in the prior arts and was intended to be solved by the

inventive concept of the suit patent. We deem it appropriate to refer to

FAO(OS) (COMM) 147/2025 Page 44 of 54

paragraphs 15, 16, 18, 20, 21, 22 and 26 to 31 of the impugned judgment,

which read as under:

“COMPLETE SPECIFICATION ALONG WITH CLAIMS

15. Firstly, a reference may be made to the section titled 'Prior Art' in

the Complete Specification of the suit patent, where the

patentee/plaintiff no.2 has acknowledged the existence of multiple

prior arts that disclose different aspects of tracking and locating a

lost/misplaced cellular mobile phone. The suit patent addresses the

problem identified in the prior arts in the following manner:-

"However, the above citations are not teaching how to locate a

mobile phone which has been stolen because the thief may

change SIM to that of different mobile network service

provider. A clever thief try to disable the security activation

element by deleting its software or deleting or changing

message center number. The present invention over comes any

steps a smart thief may take to escape detection and enable

location of device in all circumstances."

[Emphasis Supplied]

16. From the extract above, it is clear that the invention claimed in the

suit patent is addressing the problem in the prior art of locating and

recovering a stolen device from a thief who might remove the SIM

card or attempt to disable the security feature by deleting its software

or altering the 'message center number'.

…

18. From a reading of the aforesaid, the main objects of the invention

can be summarized below:

(i) To provide a communication device finder system with non-

erasable security features to locate a lost device, independent of

the mobile network service provider.

(ii) To ensure that activation or disabling of security features can

only be done remotely by the original owner or an authorized

service center through an SMS.

(iii) To enable communication with a central server or another

device using messaging or voice generation methods.

FAO(OS) (COMM) 147/2025 Page 45 of 54

(iv) To provide a security activation element capable of

triggering 'auto-answer mode', initiated remotely via the

telecom network, a designated IP address, or by entering an

incorrect PIN/password, with or without a SIM change.

(v) To allow the device, upon activation, to send pre-recorded

SMS, MMS, or emails.

(vi) To enable the device to generate and play voice and visual

messages after activation.

(vii) To incorporate an auto-reinstallation feature of the

security activation element that restores deleted data and

stores it in a non-erasable ROM.

(viii) To provide a feature for tracking and locating the current

position of the lost or stolen device.

… …

20. At this juncture, it may be useful to refer to the independent Claim

1 of the suit patent. The plaintiffs have provided a table of the break-

up of the Elements (E1-3) of the independent Claim 1 (C1) of the suit

patent in paragraph 17 of the plaint. For the sake of convenience, the

same is set out below:

Claim

Reference

Relevant Claim

C1-

Preamble

A communication device finder system comprising

C1-

Element 1

(C1- E1)

a transmitter-receiver (1) for transmitting and receiving

data in electronic connection with a microprocessor (2) to

process the data received or to be transmitted and to a

memory element to store the data: a keyboard or touch

screen (3) and optionally a mouse, connected to a dialer

element. for entering the number to be dialed or an

alphanumeric short message (SMS) or a multimedia

message (MMS); a display panel (4) connected to the

microprocessor (2) for displaying alphanumeric characters,

graphics and optionally video and/or streaming video: a

FAO(OS) (COMM) 147/2025 Page 46 of 54

read write element for reading and writing data from/to said

memory element; an embedded or discrete subscriber

identity module (SIM) for enabling wireless connection with

a predetermined telecommunication service provider

network: optionally, elements for providing visual cues on

said display panel and/or generating voice cues when said

devices is activated;

C1-

Element 2

(C1- E2)

characterized in that, said device is provided with a

security activation element (7) comprising a flash memory

with auto re-install option set for auto reinstalling data

including message center number when attempt is made to

delete it and/or a nonerasable read only memory (ROM)

containing said data,

C 1-

Element 3

(C1 - E3)

wherein the said security activation element (7) is adapted

for activating and bringing the said communication device

finder into auto-answer mode through a

telecommunication service provider network on being

triggered by any other designated communication device

or through internet from a predetermined and designated

internet protocol (IPJ address or on entering incorrect

personal identification number (PIN) or password with or

without changing said SIM, such that no visual or voice

cues accompany such activation.

21. In Guala Closures v. AGI Greenpac Ltd.

5

, it was held that the

crux of the invention is described where the expression 'characterized'

is used in the Claim. A perusal of the aforesaid independent Claim 1

of the suit patent highlights that Elements 2 and 3, following the term

'characterized in that, are the novel features of the 'communication

device finder system' claimed in the suit patent. The characteristic

features of the suit patent can be described below:

(i) A flash memory that can auto-reinstall the relevant data associated

with the security activation element against an attempt to delete the

same and/or a non-erasable read-only memory (ROM) containing such

data.

FAO(OS) (COMM) 147/2025 Page 47 of 54

(ii) A trigger mechanism for activating the security activation element,

including entering an incorrect PIN/password with or without SIM

change, or triggering a signal from another phone or through a

predetermined Internet Protocol (IP) address.

(iii) A security activation element that activates and brings the phone

into ‘auto-answer mode’ silently without visual cues and voice cues

through a telecommunication service provider network.

22. As highlighted above, the above-mentioned features have also

been addressed in the sections titled 'Objects of the Invention' and

'Description of the Invention' of the Complete Specification of the

suit patent.

… …

CLAIM MAPPING

26. With the aforesaid backdrop, a reference may be made to the

Claim mapping filed by the plaintiffs along with the plaint (page 60 of

Volume 3 of the documents filed by the plaintiffs)

27. From the claim mapping filed on behalf of the plaintiffs, the

plaintiffs have alleged that the essential elements of the suit patent are

present in the ‘Find Device’ feature in the defendant's devices.

28. However. a perusal of the Claim mapping of the suit patent and

the defendant's devices filed by the plaintiffs would show that, in

respect of the independent Claim 1, the Claim mapping refers only to

‘non-erasable anti-theft tool’. It does not make any reference

whatsoever to other elements covered in independent Claim 1, i.e.,

putting the device in 'auto-answer mode' silently and the flash memory

with the data reinstallation feature and/or ROM with nonerasable

'message center number'.

29. The term 'auto answer mode' has been defined in the description of

the Complete Specification of the suit patent in the following terms:

“The “auto answer mode” is set ON along with the “silent

mode” so that all incoming calls to the device are answered at

the first ring without the user's knowledge. This would allow

the caller (investigator or owner) to hear the conversation

(with outsiders) of the person having the stolen device.”

FAO(OS) (COMM) 147/2025 Page 48 of 54

[Emphasis Supplied]

30. Therefore, when a phone is put into 'auto answer mode’, it enables

an incoming call to be answered automatically in a silent manner

without the unauthorised user/thief getting to know about the call.

This allows the caller to listen to the conversations occurring around

the stolen device without the unauthorised user's knowledge. Notably,

this feature is absent in the defendant's devices.

31. Yet another feature absent in the defendant's devices is the flash

memory for reinstalling the data related to the 'security activation

element' when an attempt is made to delete it or a ROM with non-

erasable ‘message center number’. This feature has also been defined

in the description of the Complete Specification of the suit patent. The

same is set out below:

“The security activation device comprises software modules

installed on the flash memory in the device by the authorized

owner. The security element is made non erasable by installing

the auto re-install feature set. Yet another way to achieve this is

to provide the security activation element comprising a ROM by

the manufacturer at the time of manufacturing the device. This

element is dormant during the normal working of the device, but

will get activated once a codified SMS message is received by

the communicating device. This codified SMS will be sent by the

authorized owner of the communicating device from any other

device or server to the device in question, once he/she realizes

that his/her device has been lost/misplaced stolen.”

[Emphasis Supplied]”

37. The finding of the learned Single Judge that one of the characteristic

features of the suit patent in Element E3 was to enable an ‘auto-answer

mode’ silently without visual cues and voice cues through a

telecommunication service provider network, in the lost/stolen device, prima

facie appears to be correct, as this invention was intended to enable the

owner to retrieve the lost/stolen phone from the thief/unauthorized user.

FAO(OS) (COMM) 147/2025 Page 49 of 54

38. In the plaint at paragraph 5, it has been expressly pleaded by the

Appellants that the trigger for the patentee to develop the technology

claimed in the suit patent was the ability of the owner to recover stolen

devices by the owner without the assistance of the enforcement agencies. At

paragraph 7(vi) in the plaint, the Appellant has offered an explanation of the

purpose of having ‘auto-answer mode’ in the SAE along with ‘silent mode’

so that all incoming calls to the communication device are answered at the

first ring without the thief/unauthorized user’s knowledge, which would

allow the caller (investigator or owner) to hear the conversation (with

outsiders) of the person who has stolen communication device. The said

paragraph 7(vi) of the plaint reads as under: -

“7. The features and functioning of the subject patent are given herein

below:

… … …

(vi) The security activation element comprises of an "auto answer mode"

which is set ON along with a "silent mode" so that all incoming calls to

the communication device are answered at the first ring without the

thief/Unauthorized user's knowledge. This would allow the caller

(investigator or owner) to hear the conversation (with outsiders) of the

person having the stolen communication device.”

[Emphasis Supplied]

39. There is no dispute that Respondent’s impugned devices do not enable

‘auto-answer mode’ as defined in the complete specification of the suit

patent, at paragraph 7(vi) of the plaint, and as set out at paragraph 29 of the

impugned judgment.

FAO(OS) (COMM) 147/2025 Page 50 of 54

40. The learned Single Judge has examined in detail the features available

in the Respondent’s impugned devices which are enabled when the ‘Find

Device’ feature is activated. The details are set out in paragraphs 23 to 23.3

of the impugned judgment. Learned Single Judge has noted that, however,

there is no option of ‘auto-answer mode’ (as contemplated in the suit patent)

in the Respondent’s impugned devices when the ‘Find Device’ feature is

activated. In addition, the Respondent has contended that the ‘Find Device’

feature will be inoperable after the thief resets the factory settings of the

stolen/lost device, whereas as per the Appellants, the SAE contemplated in

the suit patent, cannot, at all, be erased by the thief/unauthorized user. The

learned Single Judge has thus concluded that for these reasons the ‘Find

Device’ feature in the Respondent’s devices does not infringe the suit patent.

We find no error in the conclusions drawn by the learned Single Judge at

paragraph nos. 23 to 25, as the Appellants have been unable to demonstrate

any error in these findings.

41. We find merit in the submission of the Respondent that if the feature

of ‘auto-answer mode’ in Element E3 is read to mean remote activation

only, such claims would lack novelty due to the prior arts

17

which already

recognised this feature.

42. We fail to understand the stand now taken by the Appellants in the

present appeal. The Appellants contend that the learned Single Judge erred

in referring to the explanation of ‘auto-answer mode’

18

contained in the

17

US 7,103,367 and EP 1684535

18

“The “auto answer mode” is set ON along with the “silent mode” so that all incoming calls to the device

are answered at the first ring without the user's knowledge. This would allow the caller (investigator or

owner) to hear the conversation (with outsiders) of the person having the stolen device.”

FAO(OS) (COMM) 147/2025 Page 51 of 54

description of the complete specification and in treating the same as a

limitation of Element E3. However, the Appellants have themselves pleaded

in the plaint, in express terms, the very same functionality and purpose of

the ‘auto-answer mode’, namely, that it operates along with the ‘silent

mode’ so that incoming calls are automatically answered without the

knowledge of the thief/unauthorized user, thereby enabling the authorized

caller or investigator to hear the conversations occurring around the stolen

device. The learned Single Judge, therefore, did not introduce any new

limitation into the claim at Element E3; he merely construed the expression

‘auto-answer mode’ in the context in which the patentee itself had described,

pleaded and relied upon it. The Appellants’ submission that the expression

‘auto-answer mode’ in Element E3 is to be interpreted by the Court without

referring to meaning expressly ascribed to it by the patentee in the complete

specification and reiterated in the plaint, is without any basis. In our

considered view, the complete specification and the plaint were the relevant

documents and have been correctly relied upon by the learned Single Judge.

We failed to understand on what other basis the learned Single Judge could

have interpreted the meaning of the phrase ‘auto-answer mode’ as it appears

in Element E3.

43. Further, the Appellants’ attempt to equate ‘auto-answer mode’ with

mere remote activation of the device is contrary not only to their own

pleadings but also to the object and inventive concept of the suit patent.

Remote triggering of a device was admittedly known in the prior arts

19

; what

the suit patent claimed as a characteristic feature was the subsequent

19

US 7,103,367 and EP 1684535

FAO(OS) (COMM) 147/2025 Page 52 of 54

activation of the device into a silent auto-answer mode, thereby allowing the

authorized person to listen to the surroundings of the stolen device without

alerting the thief/unauthorized user. The Respondent’s ‘Find Device’ feature

does not perform this function. It may remotely trigger certain functions

such as playing a sound, locking the device or erasing data, but it does not

automatically answer an incoming call, much less do so silently and without

the knowledge of the thief/unauthorized user.

44. Accordingly, the learned Single Judge was justified in construing

Element E3 in light of the specification and the Appellants’ own pleadings,

and in returning a finding that the Respondent’s ‘Find Device’ feature does

not embody the claimed ‘auto-answer mode’ contemplated by the suit

patent. We find no error in the findings recorded by the learned Single Judge

at paragraphs 29 and 30 of the impugned judgment and, accordingly, uphold

the finding of the learned Single Judge that the Respondent’s ‘Find Device’

feature does not infringe Element E3 of Independent Claim 1 of the suit

patent.

45. We therefore uphold the findings of the learned Single Judge that the

Appellants have failed to establish a prima facie case of infringement of the

suit patent.

VI. Balance of convenience

46. The learned Single Judge has, in addition, assigned cogent and

substantial reasons for concluding that the balance of convenience lies in

favour of the Respondent, and we find no reason to take a different view.

The circumstances surrounding the Appellants’ conduct in approaching the

FAO(OS) (COMM) 147/2025 Page 53 of 54

Court in the year 2023 are also material. Form-27 for April 2015, filed by

Appellant No. 2 before the patent office, demonstrates that the patentee was,

at the relevant time, aware of mobile manufacturers employing technologies

which, according to the Appellants, infringed the suit patent. The

Respondent has stated that it commenced sale of its devices in India in 2014

and this has not been disputed by the Appellants. Despite such knowledge,

the Appellants did not approach the Court in 2015 or within any reasonable

period thereafter but chose to institute the present proceedings only after a

period of approximately nine (9) years. Such prolonged and conscious delay

by the plaintiff evidences lack of urgency and is, by itself, a sufficient

ground to not grant an interim injunction, and such a plaintiff should be

directed to proceed with trial to prove infringement and claim damages. In

these circumstances, the learned Single Judge was justified in declining

interim relief on the sole ground of delay itself. [Re: Novo Nordisk A/s v.

Dr. Reddy’s Laboratories Ltd. (supra)]

47. We accordingly find no infirmity in the impugned judgment

warranting interference in the present appeal.

48. We clarify that the observations made herein, as well as those

contained in the impugned judgment to the extent relevant to the present

appeal, are prima facie in nature. Nothing stated herein shall be construed as

a final expression of opinion on the merits of the suit. The Single Judge shall

consider the evidence and contentions of the parties independently at the

stage of trial, uninfluenced by any observations made in the present

judgment.

FAO(OS) (COMM) 147/2025 Page 54 of 54

49. Subject to the aforesaid clarification, the appeal is accordingly

dismissed. Pending applications, if any, stand dismissed.

MANMEET PRITAM SINGH ARORA , J

V. KAMESWAR RAO , J

SEPTEMBER 07, 2026/AJ/AM/hp