Bajaj v TVS – Is there anything to (DT)sigh about?

Sivaraman Vaidyanathan, Barrister-At-Law

Well there is not really much to sigh about so long as you’re not associated with Bajaj or TVS. The looming Bajbaj v TVS battle is probably the biggest domestic dispute in the history of the Indian patent system. It is significant for two reasons one being the enormous success and appeal of the technology being fought over and the other being the fact that for the first time, two companies with track records of finding technology partners, are about to embark on a fight essentially based on technical independence. Indeed, the nature, scope and functioning of the entire R & D capacities of both parties will be minutely scrutinized with each side looking for minor to fatal flaws in the R & D structure of the other. This will incite the interest of all players big or small; present or future.

Twin spark technology, which Bajaj claims to hold the solitary and definitive patent on, dates back to the early 1900s, finding its first use in a race-car manufactured by Alfa Romeo. AR holds several expired patents on double ignition technology and several hundreds of patents, overall. Fiat picked up this technology in the mid 1900s for mass production, utilizing the creative genius of Lampredi, whose track record spanned both automobile and aircraft design at Piaggio, Vespa, Reggiane etc. Although TVS contends that Bajaj’s original patent should be revoked because Honda has a corresponding US Application, the number of applications that Bajaj potentially has to contend with, in terms of differentiating itself from prior-art, are easily a few dozen, with the other players being Honda, Harley Davidson, Fiat, Ford Motor and General Motor, to name a few. The ubiquity of twin spark technology makes it akin to the automatic transmission technology, for which Honda faced a bit of fear on the patent litigation front in 1966, when it released its Hondamatic technology in the N360AT model. The history and pending case-list in the automobile sector is long and drawn out. Several issues have formed the foci of patent litigation in this sector, not limited to, core-technologies (such as automatic transmission – Honda, eco-friendly cars-Toyota), manufacturing locations and external design (design (Harley Davidson). Though the Bajaj-TVS battle is the first of its kind in India, it remains to be seen how much of this will yield further scrutiny of existing and revocation of existing patents, specially when technology becomes ubiquitous and still has valid patents covering it, exemplified popularly by the infringement action brought by Honeywell, to protect its Liquid Crystal Display patent.

Of course both parties will be well advised to resort to an amicable solution which is easier said than done especially considering the fundamental nature of the dispute. An Intellectual property dispute, unlike other big corporate battles involving failed deals and family feuds is an objective trial of a subjective state of affairs. Each party will think they are in the right and indeed they will have strong and justifiable grounds for thinking so. Unfortunately however, right or wrong doesn’t always equate to a victory or a loss. The fact remains that regardless of who is right or wrong the competing entitlements in the current scenario will remain unresolved for a very long time.

TVS has made the smart move of applying for the cancellation of Bajaj’s patent. The chances of success in such an application are automatically reduced by the fact that the patent application and subsequent grant thereof would have already undergone a thorough examination and evaluation by the Patent Office. Of course, the grant of a patent only means that the procedural formalities have been complied with, and does not validate the substantive scope of the patent. This however, does not strengthen TVS’s case but rather only gives them the basis for making the present application.

Notwithstanding the fact that success in the cancellation application may be hard to come by, the fact that such an application has been filed will definitely stall and delay any legal action based on Bajaj’s widely reported allegations of infringement. Also, the fact of the application combined with the publicity generated definitely rules out any scope of either party applying for and receiving any interim relief which often provides a head-start and sufficient incentive to find a quick solution.

The bottom line remains that the present battle will be a long drawn one if it follows its entire logical course. The biggest damage will be in terms of uncertainty rather than any real monetary losses. Success or failure in litigation is dependant on so many irrelevant and unreasonable factors that it would be impossible to comment on who will eventually come out riding stronger. The only certainty emerging from the present situation is that Indian companies, even in traditionally copycat sectors, are working and striving towards an unforeseen level of technical independence and superiority. The fact is that like all battles, both parties will be losers and the bigger world of the Indian motorbike consumer will be the eventual winner.

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