119R

TEAM CODE: TN - 119
1ST SYMBIOSIS LAW SCHOOL, HYDERABAD

NATIONAL MOOT COURT COMPETITION, 2016
SPECIAL LEAVE PETITION NO. ______________/ 2016
BEFORE THE HONBLE SUPREME COURT OF INDUX
In the proceedings between
BULBTECH AGGRIEVED PARTIES GROUP (BAPG)

..APPELLANT
versus
NOTSOGENERAL ELECTRONICS (NGE) & UNION OF INDUX
.......RESPONDENTS
MOST RESPECTFULLY SUBMITTED
COUNSELS APPEARING ON BEHALF OF THE RESPONDENT
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
11
SUMMARY OF ARGUMENTS
12
ARGUMENTS ADVANCED
14
ISSUE 1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

CONTRACT?
14
ISSUE 1.1 THAT THE AGREEMENT BETWEEN NGE AND THE CUSTOMERS
WAS BASED ON REAL CONSENT
15
ISSUE 1.2 THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS
WERE UNCONSCIONABLE OR OPPOSED TO PUBLIC POLICY
17
ISSUE 2. WHETHER NGE ACTED CONTRARY TO THE DATA PRIVACY LAWS OF

INDUX?
20
ISSUE 2.1 THAT THE DATA PRIVACY LAWS OF INDUX DID NOT APPLY TO
NGE
20
ISSUE 2.2 THAT NGE DID NOT VIOLATE ANY DATA PRIVACY LAWS OF
INDUX
21
ISSUE 2.3 THAT THE CUSTOMERS INDEMNIFIED NGE WHEN THEY ENTERED
INTO THE CONTRACT
24
ISSUE 3. WHETHER THE PATENT ON BULBTECH WAS VALIDLY GRANTED TO

NGE?
25
ISSUE 3.1 THAT THE INVENTION FULFILS THE TESTS OF 'NOVELTY,

'UTILITY', AND 'INVENTIVE STEP'
MEMORIAL ON BEHALF OF THE RESPONDENT
25
Page | 2
ISSUE
3.2
THAT
THE
INVENTION
DOES
RESTRICTIONS OF S.3 OF THE PATENTS ACT

PRAYER
NOT
FALL
UNDER
THE
27
30
Page | 3
LIST OF ABBREVIATIONS
Abbreviation
Definition
&
And
Paragraph
A.I.R.
All India Reporter
BAP
Barium Arsenide Phosphide
H.C.
High Court
Honble
Honorable
i.e.
that is
Ibid
Ibidem
IPAB
Intellectual Property Appellate Board
Ltd.
Limited
NGE
Notsogeneral Electronics
No.
Number
Ors.
Others
RSPDI
Reasonable Security Practices and Procedures and

Sensitive Personal Data or Information
S.
Section
SC
Supreme Court of India
SCC
Supreme Court Cases
SCR
Supreme Court Reporter
SFC
Standard Form Contract
SWC
Shrink-Wrap Contract
v.
Versus
Page | 4
INDEX OF AUTHORITIES
CASES CITED
S.No.
Name of Case
Citation
Page No.
1.
Alderslade v. Hendon Laundry Ltd
(1945) 1 KB 189
18
(1927) 43 TLR 323
17
AIR 1996 SC 2054
19
AIR 1982 SC 1444
27
AIR 1990 SC 540
16
1990 (3) SCC 481
20
43 F 2d 588 (7th Cir 1976)
29
[1986] 2 SCR 278
17
AIR 1954 SC 181
16
1 All E.R. 451 (1972)
20
2.
3.
4.
5.
6.
7.
8.
9.
10.
Alison (J Gordon) Ltd. v. Wallsend Shipway and

Engineering Co. Ltd.
B.V. Nagaraju v. Oriental Insurance Co. Ltd.
Bishwanath Prasad Radhey Shyam v. Hindustan
Metal Industries
Bismillah v. Janeshwar Prasad
British India Steam Navigation Co. Ltd. v.
Shanmughavilas Cashew Industries
Burland v. Trippe Mfg. Co.
Central Inland Water Transport Corporation v.
Brojo Nath Ganguly
Central National Bank v. United Industrial Bank
Coast Lines Ltd. v. Hudig & Veder Chartering
NV
11.
DDA v. Jitender Pal Bhardwaj
AIR 2010 SC 497
17
12.
Fender v. John Mildmay
1938 AC 1, 723
18
13.
Gandhimathi Appliances Ltd. v. LG Varadaraju
(2000) 3 MLJ 85
26
14.
Gherulal Parekh v. Mahadeodas
(1959) 2 SCR 406
18
15.
Glochem Industries Ltd. v. Cadila Healthcare Ltd.
AIR 2010 Bom 76
28
16.
Hoffmann-La Roche Ltd. v. Cipla Ltd.
2015(225) DLT 391
27
17.
Hollins v. J. Davey Ltd.
(1963) 1 All ER 370
19
18.
J. Spurling Ltd. v. Bradshaw
(1956) 1 WLR 461
19
19.
Lallubhai Chakubhai v. Chimanlal & Co.
AIR 1936 Bom 99
28
20.
Lily White v. Munuswami
AIR 1966 Mad 13
18
AIR 1999 AP 106
15
AIR 1930 Pat 601
16
21.
22.
M/S Prakash Road Lines (P) Ltd. v. H.M.T.

Bearing Ltd.
Naba Kishore Lal Singh Deo v. Panchanan Mahto
Page | 5
S.No.
23.
Name of Case
National Thermal Power Corporation v. Singer
Company
Citation
Page No.
AIR 1993 SC 998
20
24.
Novartis AG v. Union of India
2013 (6) SCC 1
26
25.
(2007) 4 MLJ 1153
28
M.P. Nos. 1 to 5/2007 in TA/1

26.
to 5/2007/PT/CH; M.P. No.

33/2008 IN TA/1/2007/PT/CH
28
and TA/1 to 5/2007/ PT/CH

27.
Patel Engg. Ltd. v. Union of India
28.
ProCD Inc. v. Zeidenberg
29.
Rabindra N. Maitra v. Life Insurance Corporation

of India
(2012) 11 SCC 257
14
908 F.Supp. 640 (W.D. Wis.

1996)
15
AIR 1964 Cal 141
21
30.
Ratanchand Hirachand v. Askar Nawaz Jung
AIR 1976 AP 112
18
31.
Ratanchand Hirachand v. Askar Nawaz Jung
(1991) 3 SCC 67
18
13 I.C.L.Q. 1011 (1963)
20
32.
Saphire International Petroleum Ltd. v. The

International Iranian Oil Company
33.
Saunders v. Anglia Building Society
(1971) AC 1004
16
34.
Sayer v. International Drilling Co.
3 All E. R. 163, (1971)
20
35.
Smith v. Hughes
(1871) LR 6 QB 597
16
36.
Thompson v. LM&S Railway Co.
[1930] 1 KB 41
15
37.
TVS Motor Co. v. Bajaj Auto Ltd.
4 Mad LJ 849
25
38.
Usha Kumari Ranawat v. LIC
(2011) 13 SCC 196
16
39.
Vishnu Agencies v. Commercial Tax Officer
AIR 1978 SC 449
14
40.
Wajid Khan v. Raja Ewaz Ali Khan
(1890-91) 18IA 144
18
Page | 6
STATUTES REFERRED
S.No.
Name
1.
The Constitution of India, 1950
2.
The Draft Manual of Patent Practice and Procedure, 2008
3.
The Indian Contract Act, 1872
4.
The Information Technology (Reasonable Security Practices and Procedures and

Sensitive Personal Data or Information) Rules, 2011
5.
The Information Technology Act, 2000
6.
The Patents Act, 1970
BOOKS REFERRED
S.No.
Name
1.
Ananth Padmanabhan, Intellectual Property Rights (1st Edition, 2012)
2.
Anirudh Rastogi, Cyber Law (2nd Edition, 2009)
3.
Aparna Viswanathan, Cyber Law (1st Edition, 2012)
4.
Avtar Singh, Contract and Specific Relief (11th Edition, 2013)
5.
Dr. F.E. Noronha, Private International Law in India: Adequacy of Principles in

Comparison with Common Law and Civil Law Systems (1st Edition, 2010)
6.
Elizabeth Verkey, Intellectual Property (1st Edition, 2015)
7.
I.P. Massey, Administrative Law (8th Edition, 2012)
8.
Justice Yatindra Singh, Cyber Laws (4th Edition, 2010)
9.
Larry A DiMatteo, Law of International Contracting (2nd Edition, 2009)
10.
Sir Dinshaw Fardunji Mulla, The Indian Contract Act (15th Edition, 2016)
Page | 7
STATEMENT OF JURISDICTION
The Honourable Supreme Court of Indux is vested with the jurisdiction to hear the present
matter by virtue of Article 136 of the Constitution of Indux.
The provision under which the Appellants have approached this Hon'ble Court and to which
the Respondent humbly submits is read herein under:
"ART. 136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
Court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any Court or tribunal constituted by or under any law
relating to the Armed Forces"
Page | 8
STATEMENT OF FACTS
The Parties
NGE (NotSoGeneral Electronics) with its registered office in Germnazi ventured in the State
of Indux with its laws in para materia to Indias. Mr. Ashok Ganguly, along with the
aggrieved customers and Monolever Limited (ML) have come together as BulbTech
Aggrieved Parties Group (BAPG). NGEs main focus was on creating expensive electronic
technology largely focused on reduction of customer expenditure on the same in the longterm.
The Technology
NGE created an energy efficient LED Bulb Technology known as BulbTech that could last
for 100 years without fusing. Because NGE had used Barium Arsenide Phosphide in a novel
way by using it in conjunction with LED devices along with heating it whilst adding a certain
impurity of nitrogen, it finally got patent production in the bulb in Indux.
The Impugned Contract and BulbTechs Operation

BulbTech was sold on the basis of Easy Monthly Instalments (EMIs) to customers.
Customers were required to provide their credit card details to pay the first instalment, and
this continued for 15 months. The bulb was packaged along with an SWC, the terms of which
every customers was bound with the moment they tore open the wrapper of the bulb box. On
failure of payment of any instalment, the circuit of the bulb was cut off from the main server
in Germnazi and the bulb stopped functioning.
Page | 9
The MOU With the Government of Indux

The Government of Indux approached NGE to sign an MOU with them in order to provide
subsidies under the Make in Indux initiative, and premises to manufacture BulbTech and
facilitate the physical sale of the same, respectively. This was done on the basis of the
demand figures for total energy consumption in Indux and projections of reductions of energy
consumption in relation to CFLs and ordinary bulbs.
The Factum of Dispute

On account of the failure to pay instalments, a number of customers faced disconnection of
the bulb. Many customers also received promotional/solicitation calls from various
international commercial banks in Germnazi not approved by the Reserve Bank of Indux for
solicitation of investments. Mr. Ganguly later realized that on breach of contract by
customers owing to failure to pay for instalments, NGE was not responsible for the data
provided and could dispose it off in a manner it deemed fit.
The History of Proceedings

Following Mr. Gangulys writ petition, which was joined by Monolever Limited and other
aggrieved customers together as BAPG, in the High Court of Channel against the
Government of Indux and NGE, BAPGs pleas having been rejected by the High Court,
BAPG chose to invoke the Special Leave Jurisdiction of the Honble Supreme Court of
Indux.
Page | 10
STATEMENT OF ISSUES

CONTRACT?
1.1 THAT THE AGREEMENT BETWEEN NGE AND THE CUSTOMERS WAS
BASED ON REAL CONSENT.
1.2 THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS WERE
NOT UNCONSCIONABLE OR OPPOSED TO PUBLIC POLICY.
ISSUE 2. WHETHER NGE ACTED CONTRARY TO THE DATA PRIVACY LAWS
OF INDUX?
2.1 THAT THE DATA PRIVACY LAWS OF INDUX DID NOT APPLY TO NGE.
2.2 THAT NGE DID NOT VIOLATE ANY DATA PRIVACY LAWS OF INDUX.
2.3 THAT THE CUSTOMERS INDEMNIFIED NGE WHEN THEY ENTERED INTO
THE CONTRACT.
ISSUE 3. WHETHER THE PATENT ON BULBTECH WAS VALIDLY GRANTED
TO NGE?
3.1. THAT THE INVENTION FULFILS THE TESTS OF NOVELTY, UTILITY,
AND INVENTIVE STEP.
3.2. THAT THE INVENTION DOES NOT FALL UNDER THE RESTRICTIONS OF
S.3 OF THE PATENTS ACT.
Page | 11
SUMMARY OF ARGUMENTS

CONTRACT?
A catena of decisions on SWCs have shown that there must be reasonably sufficient notice in
both form, clarity and content. Such contracts cannot be invalidated on the grounds of the
plaintiffs negligence itself. Nevertheless, NGE has exempted itself from liability in clear
words and thus, the plea of non est factum is not available to the plaintiffs, whose mistake
really is to the legal effect of the document. Further, the impugned term does not violate
section 23 as being unconscionable or opposed to public policy. The main purpose of the
contract, which was to facilitate the functioning of BulbTech, has not been derogated from
and the contract in the current case. The release of a data is a reaction mechanism to
incentivize timely payment from a large number of customers on the whole. Anyway, the
contract is not a traditional take-it-or-leave-it contract as it neither regulates nor limits the
choices of customers to choose other options of household lighting.
ISSUE 2. WHETHER NGE ACTED CONTRARY TO THE DATA PRIVACY LAWS

OF INDUX?
Since NGE is a corporation registered and situated outside Indux, the data privacy laws of
Indux are not applicable to it. Even if they are applicable, there has been no contravention of
Section 43A of the IT Act, 2000, since there was not any negligence; and by virtue of Rules 6
and 8 of the IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011, NGE could distribute and transfer the data as it did. Further, since
the Government of Indux fulfils the provisions laid down under S.79(2) of the Information
Technology Act, 2000, it is exempt from the liability of an intermediary as given under
S.79(1). Furthermore, the customers had already contracted out of any privacy requirement
vide the indemnity clause.
Page | 12
ISSUE 3. WHETHER THE PATENT ON BULBTECH WAS VALIDLY GRANTED

TO NGE?
For a patent to be granted, it should be new or novel, should have an inventive step and
should have some industrial utility. It is humbly submitted that in the instant case, the
process of heating Barium Arsenide Phosphide to a particular temperature and then adding a
certain quantity of Nitrogen as an impurity, is not only novel, but it also involves an inventive
step. It is further submitted that the invention does not fall under the restrictions of S.3(d) and
(e), since it has shown a significant enhancement of efficacy.
Page | 13
ARGUMENTS ADVANCED
1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

CONTRACT?
It is most humbly submitted before this Hon'ble Court that in the instant case, the ShrinkWrap Contract (SWC) was an enforceable contract. The SWC is a form of a standard form
contract signed between two parties that has no room for negotiation. The customer is in no
position to renegotiate the standard terms of the contract and the companys representative
usually does not have the authority to do so. The general principles of a valid contract as
contained in S. 101 mandates that there must be an agreement enforceable by law that is
based on free consent of the contracting parties who are competent to contract, which must
be for a lawful consideration and lawful object, and it must not be expressly declared void.
What Section 2(b)2 requires is that the acceptor must have a real opportunity to review the
proposal and to decide whether to accept it or not. Freedom of contract is an important
principle that lies in choosing the terms or the parties to the contract,3 however there is no
absolute freedom of contract, but an agreement made under certain compulsions which
might be inherently imposed by the terms in a contract or laid down by law, is no less a
contract because of this reason alone, as was held in Vishnu Agencies v. Commercial Tax
Officer.4
Section 10, The Indian Contract Act, 1872: What agreements are contracts.All agreements are contracts if
they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful
object, and are not hereby expressly declared to be void. All agreements are contracts if they are made by the
free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not
hereby expressly declared to be void."
2
Section 2(b), The Indian Contract Act, 1872: When the person to whom the proposal is made signifies his
assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.
3
Patel Engg. Ltd. v. Union of India, (2012) 11 SCC 257.
AIR 1978 SC 449.
Page | 14
It will be pleaded by the Respondents that firstly, there was real consent to the terms in the
SWC and secondly, that the terms of the SWC are not unconscionable or opposed to public
policy.
1.1. THAT THE AGREEMENT BETWEEN NGE AND THE CUSTOMERS WAS BASED ON
REAL CONSENT.
1. A shrink-wrap license is an unsigned licensing agreement generally accompanying the
sale of computer software which states that the client's acknowledgment of the terms of
the assertion is demonstrated by opening the shrink-wrap bundling or other bundling of the
product, by utilization of the product, or by some other determined instrument.5 ProCD,
Inc. v. Zeidenberg6 involved the question of whether Zeidenberg violated the terms of the
shrink-wrap license agreement, which expressly stated that copying of the software and
the data (the telephone listings) may be done only for individual or personal use and that
distribution, sublicense or lease of the software or the data was prohibited. The court
refused to enforce the agreement on the grounds that where the contract failed to present
an adequate opportunity to inspect or consider the terms acceptability of the license to a
customer, the contract would not be enforced. If, on the other hand, as was held in the case
of M/S Prakash Road Lines (P) Ltd. v. H.M.T. Bearing Ltd.,7 reasonably sufficient notice
about the terms of the contract has been given, there is a binding contract on such terms.
The facts of the current case furnish ripe ground for non-application of the ProCD cases
principle to this case as the indemnity clause was present in the SWC and would have
been realized but for the aggrieved customers' negligence.8
2. Further, owing to the aggrieved customers negligence, it is respectfully submitted that the
defence of non est factum cannot be availed in the instant case. If the notice is otherwise
Sakshi Bhatnagar, E-contracts What are Shrink Wrap, Click Wrap, and Browse-Wrap Agreements?,
IPLEADERS
(last visited Aug. 18, 2016), http://blog.ipleaders.in/e-contracts-shrink-wrap-click-wrap-browse-
wrap-agreements/.
6
908 F.Supp. 640 (W.D. Wis. 1996).
AIR 1999 AP 106.
Moot Problem, 5.
Page | 15
sufficient, anything short of an incapacity (such as a disability), illiteracy,9 or inability to

understand English, will be treated as irrelevant.10 Section 1311 stresses upon the concept
of real (consensus ad idem), as opposed to apparent, consent which is at the root of
every contract12 - when the parties to a contract agree upon the same thing in the same
sense. This Hon'ble Court in Central National Bank v. United Industrial Bank13 held that
the same thing must be understood as the whole contents of the agreement, whether it
consists, wholly or in part, of delivery of material objects, or payment, or other executed
acts or promises.
3. The defence of non est factum is applied where there might be replete evidence of external
consent, but apparent consent might have been given under a mistake so complete so as to
prevent the parties from agreeing upon the same thing.14 According to the ruling in
Bismillah v. Janeshwar Prasad,15 a transaction is invalid not on the premise of fraud or
misrepresentation which caused the error, but because the mind of the signor did not
accompany the signature and turned out to be something different from the document that
he intended to sign. As was the case in Saunders v. Anglia Building Society,16 the defence
of non est factum will not be available if the disparity between the two criteria turns out
not to be fundamental or radical. The plea of non est factum will not be available
lightly.17 The Saunders case makes it clear that the plea will definitely not be available to a
person whose mistake was really a mistake as to the legal effect of the document. So also
was the onus on the party making the plea in Usha Kumari Ranawat v. LIC,18 where it was
held that the presumption that the person signing does so with full knowledge of terms and
9
Thompson v. LM&S Railway Co., [1930] 1 KB 41.
10
SIR JACK BEATSON, ANDREW BURROWS AND JOHN CARTWRIGHT, ANSONS LAW OF CONTRACT 175 (29TH ED
2010).
11
Section 13, The Indian Contract Act, 1872: Consent defined.Two or more persons are said to consent
when they agree upon the same thing in the same sense. Two or more persons are said to consent when they
agree upon the same thing in the same sense.
12
Smith v. Hughes, (1871) LR 6 QB 597: (1961-73) All ER Rep 632 (DC).
13
(1954) SCR 391: AIR 1954 SC 181.
14
ANIRUDH RASTOGI, CYBER LAW: LAW OF INFORMATION TECHNOLOGY AND INTERNET 67 (1st ed 2014).
15
(1990) 1 SCC 207, 211: AIR 1990 SC 540.
16
(1971) AC 1004: (1970) 3 All ER 961.
17
Naba Kishore Lal Singh Deo v. Panchanan Mahto, AIR 1930 Pat 601.
18
(2011) 13 SCC 196.
Page | 16
conditions. Although this is a rebuttable presumption, the Court has ruled against the party
pleading that he did not read the document in Naba Kishore Lal Singh Deo v. Panchanan
Mahto.
4. Even if the doctrine of strict interpretation is reasoned to be applied, NGE has used clear
terminology to exempt itself from liability in the event of the breach of contract. The case
of Alison (J Gordon) Ltd. v. Wallsend Shipway and Engineering Co. Ltd.19 stands clear on
this doctrines application in case where a person is under a legal liability and wishes to
get rid of it, it can only be applied by using clear words. The case of DDA v. Jitender Pal
Bhardwaj20 also held that where the terms of exemption are specific, unambiguous and
plain, they should be taken in their plain meaning. In the impugned indemnity clause, it
clearly mentioned that NGE takes absolutely no responsibility of any data provided once
the contract is breached by the customer and that the data may be disposed of in a manner
that the company deems fit.21
1.2. THAT THE AGREEMENTS BETWEEN NGE AND THE CUSTOMERS WERE NOT
UNCONSCIONABLE OR OPPOSED TO PUBLIC POLICY.
1. It is humbly submitted before the Honble Court that the impugned term in the contract
was not unconscionable or opposed to public policy. This Honble Court in Central Inland
Water Transport Corporation v. Brojo Nath Ganguly,22 ruled that any term which is so
unfair and unreasonable as to shock the conscience of the court would be opposed to
public policy and therefore also void under Section 23.23 In the same case, the word
"unconscionable" was defined, when used with reference to actions as "showing no regard
19
(1927) 43 TLR 323, 324.
20
(2010) 1 SCC 146: AIR 2010 SC 497.
21
Supra, note 8.
22
[1986] 2 SCR 278.
23
Section 23, The Indian Contract Act, 1872: What consideration and objects are lawful, and what not.The
consideration or object of an agreement is lawful, unless The consideration or object of an agreement is

lawful, unless" it is forbidden by law; 14 or is of such a nature that, if permitted, it would defeat the provisions
of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court
regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an
agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Page | 17
for conscience; irreconcilable with what is right or reasonable".24 In cases of

unconscionableness in SFCs, the onus is on the party in a position to dominate the will of
the other to show conclusively that the transaction is honest, bona fide, well-understood,
the subject of independent advice and free from undue influence.25
2. In Lily White v. Munuswami,26 the Madras HC refused to enforce a condition which is
imposed in flagrant infringement of the law relating to negligence, or a term which is not
in the interest of the public and which is not in accordance with public policy. It is not
reasonable to exclude liability for breach of a term that is fundamental to the contract.27
Thus, what is a fundamental breach of a contract is determined by its core or
fundamental obligation which must be performed.28
3. An agreement is unlawful if the court regards it as opposed to public policy.29 There are a
few well-settled heads of public policy on which courts have relied in order to strike down
a contract and the ordinary function of the courts is to rely on these to apply them to
various situations.30 In the words of Lord Atkin in Fender v. John Mildmay,31 the
doctrine should only be invoked in clear cases in which the harm to public is substantially
incontestable, and does not depend upon the idiosyncratic inference of a few judicial
minds. In Ratanchand Hirachand v. Askar Nawaz Jung,32 the Andhra Pradesh High
Court observed that the dual pillars of public policy are advancement of public good and
prevention of public mischief and that these questions have to be decided not technically,
but using the highest common factor of public sentiment and intelligence. On appeal in the
SC,33 it was added that an agreement having a tendency to injure public interest or public
welfare is opposed to public policy.
24
SHORTER OXFORD ENGLISH DICTIONARY 2288 (Lesley Brown ed. 3rd ed. 1993).
25
Wajid Khan v. Raja Ewaz Ali Khan, (1890-91) 18 IA 144.
26
AIR 1966 Mad 13.
27
AVTAR SINGH, LAW OF CONTRACT AND SPECIFIC RELIEF 90 (11th ed 2013).
28
Alderslade v. Hendon Laundry Ltd., (1945) 1 KB 189, 193 (CA).
29
Ibid, p. 263.
30
Gherulal Parekh v. Mahadeodas, (1959) 2 SCR 406.
31
1938 AC 1, 723: (1937) 3 All LR 402 (HL).
32
AIR 1976 AP 112.
33
Rattanchand Hirachand v. Askar Nawaz Jung, (1991) 3 SCC 67.
Page | 18
4. Where adequate notice of the terms and conditions in a document has been given, the
dominant party, i.e. the party imposing the conditions may not be able to rely on them if
he has committed a breach of the contract which can be described as 'fundamental'. While
explaining the rule, Lord Denning LJ in J. Spurling Ltd. v. Bradshaw,34 stated- "The
exempting clauses are nowadays all held to be subject to the overriding proviso that they
can be availed to exempt a party when he is carrying out his contract, but not when he is
deviating from it." In the instant case, the collection of data was carried out only to
facilitate the functioning of BulbTech, and the release of data was done only in response to
a breach in contract, to incentivize timely payment from a larger number of customers on
the whole. It is submitted that since NGE did not depart from the main purpose of the
contract, the Respondents shall not be held liable.35
5. Further, it is argued at the outset that BulbTech is just one of many household lighting
options in the market. The supreme utility of the bulb is in direct competition with cheaper
alternatives in the market. The dissemination of important details of the customers is only
in response to a breach of contract, quite similar to that of the seizure of security on the
failure to pay mortgage by a person. The measure, although forceful and harsh, is the most
efficient way along with shutting down the power from the servers in Germnazi, to
incentivize timely payment from a larger number of customers on the whole. Despite the
fact that the Shrink-Wrap Contract is a form of a Standard Form Contract, the situation in
the current case is peculiar in the sense that, the choice between BulbTech is not a take-itor-leave it situation, and thus NGE does not exert massive power on customers.
34
(1956) 1 WLR 461, 465. See also B.V. Nagaraju v. Oriental Insurance Co Ltd., AIR 1996 SC 2054.
35
Hollins v. J. Davey Ltd., (1963) 1 All ER 370.
Page | 19
2. WHETHER NGE ACTED CONTRARY TO THE DATA PRIVACY LAWS OF

INDUX?
2.1. THAT THE DATA PRIVACY LAWS OF INDUX DID NOT APPLY TO NGE.
1. The Counsel for the Respondents humbly submits before the Hon'ble Court that the Data
Privacy laws of Indux did not apply to NGE, since it followed data security practices as
prescribed under the laws of Germnazi, i.e. the European Data Protection Directive and
the Bundesdatenschutzgesetz (BDSG); and not the IS/ISO/IEC 27001 standards.36
2. It is further submitted before the Hon'ble Court that shortly after the Department of
Information Technology had notified The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (IT
Rules), the Department issued a Clarification on the Rules through the Press Information
Bureau. In the Clarification, the Department stated that the Rules regarding sensitive
personal data or information are only applicable to a body corporate located within India.
In the instant case, NGE is registered as a company in the State of Germnazi, and the
shrink wrap contract is between the customers and the main branch of NGE in Germnazi.37
3. In case of parties not expressly deciding which law will bind them both, it is useful to look
for the common intention of the parties.38 Roskill J. in Coast Lines Ltd. v. Hudig & Veder
Chartering NV39 preferred to infer the intention of the parties as to the proper law from the
nature and location of the subject matter of the contract. Further, it has been established
that foreign law can be relied upon to assess whether an Indian court has jurisdiction in a
particular case in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew
Industries.40 The common law position is that that system of law may be determined as the
proper law, with which it determines that the transaction has its closest and most real
connection41, as was held in National Thermal Power Corporation v. Singer Company.42
36
Moot Problem, 3.
37
Moot Clarifications, Set I, Question 3.
38
Saphire International Petroleum Ltd. v. The International Iranian Oil Company, 13 I.C.L.Q. 1011 (1963).
39
1 All E.R. 451 (1972).
40
1990 (3) SCC 481.
41
Sayer v. International Drilling Co., N. V., 3 All E. R. 163, (1971).
Page | 20
4. This is, as explained in the case of Rabindra N. Maitra v. Life Insurance Corporation of
India,43 explained by the localization theory, which lays out different factors to decide the
choice of law - the place where the contract was made; place of performance; place of
domicile; residence or business of the parties; national character of corporation; subject
matter of contract; and all other facts that help to localize the contract. The only limitation
on this rule of intention is that the intention itself should be expressed bona fide and it
should not be opposed to public policy.44 Even assuming arguendo that there is an absence
of express or implied choice, the court must gauge the true intention of the parties by
applying the reasonable man test. This can be done by applying sound ideas of
business, convenience and sense to the language of the contract itself.45 It is humbly
submitted that, since the contract was between the customers and NGE,46 and the
primary place of performance of the contract was in Germnazi itself. Since the main
server, which was crucial to centrally facilitate operation of every BulbTech circuit, was in
Germnazi, as well as being the operating centre of NGE, it was thus the place of
performance of the contract. Further, as has already been proved above, the data collection
and dissemination was not against public policy. Therefore, the data privacy laws of
Germnazi, and not the ones followed by Indux, should apply to NGE.
2.2. THAT NGE DID NOT VIOLATE ANY DATA PRIVACY LAWS OF INDUX.
1. It is submitted that if, arguendo, the laws of Indux did apply on NGE, it has not acted
contrary to any of the provisions, be it the Information Technology Act, 2000 or the
Information Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data of Information) Rules, 2011.
2. The section which provides for compensation for failure to protect data, Section 43A47 of
the IT Act, 2000, cannot apply to NGE. It reads:
42
AIR 1993 SC 998.
43
AIR 1964 Cal 141.
44
DR. F.E. NORONHA, PRIVATE INTERNATIONAL LAW IN INDIA: ADEQUACY OF PRINCIPLES IN COMPARISON WITH
COMMON LAW AND CIVIL LAW SYSTEMS, 73 (1st ed. 2010).

45
Ibid.
46
Moot Clarifications, Set I, Question 3.
47
Section 43A, Information Technology Act, 2000.
Page | 21
"S.43A, Information Technology Act, 2000- Where a body corporate, possessing,

dealing or handling any sensitive personal data or information in a computer
resource which it owns, controls or operates, is negligent in implementing and
maintaining reasonable security practices and procedures and thereby causes
wrongful loss or wrongful gain to any person, such body corporate shall be liable
to pay damages by way of compensation to the person so affected."
3. It is submitted before the Hon'ble Court that NGE has not been negligent in any manner
whatsoever. The contract was entered into with free consent and the data was collected
and stored following reasonable data privacy procedures.
4. Furthermore, there must be a reasonable expectation that the data shall be used for a
purpose by the corporation once it has been given out. Apart from applicable legal
obligations or information sought by Government agencies, a body corporate is required to
obtain explicit permission from the information provider prior to disclosure of such
information to a third party, unless such disclosure has been agreed to in a contract
between the parties, as laid down in Rule 6 48 of the Information Technology (Reasonable
Security Practices and Procedures and Sensitive Personal Data or Information) Rules of
2011. It is submitted before the Hon'ble Court that it is clear from the facts of the instant
case that the customers who bought BulbTech gave their consent to the contract and thus,
to the indemnity clause present in it.
5. It is submitted before the Hon'ble Court that Section 79(1)49 of the of Information
Technology Act, 2000 lays down that an intermediary shall not be held liable for any third
party information, data, or communication link made available or hosted by him, if the
provisions under S. 79(2) 50 of the Act are fulfilled. S. 79(2) reads as follows:
48
Rule 6, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data
or Information) Rules, 2011.

49
Section 79(1), Information Technology Act, 2000: Notwithstanding anything contained in any law for the
time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable
for any third party information, data, or communication link made available or hosted by him.
50
Section 79(2), Information Technology Act, 2000.
Page | 22
"Exemption from liability of intermediary in certain cases

The provisions of sub-section (1) shall apply if(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third
parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not(i)initiate the transmission,
(ii)select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;"
(c) the intermediary observes due diligence while discharging his duties
under this Act and also observes such other guidelines as the Central
Government may prescribe in this behalf.
6. It is clear from the facts of the case that the Government of Indux fulfils all the provisions
as laid down under S.79(2) - the main task of the Government in the instant case was
limited to transmitting the information of the customers to NGE during the purchase of
BulbTech from the Government shops. Further, the transmission was fixed between the
Customers and NGE, and the Government of Indux did not select or modify the
information contained in the transmission whatsoever.
7. It must be brought to the Courts attention that Rule 8 of the Information Technology
(RSPDI) Rules gives a body corporate the liberty to transfer the sensitive personal data or
information to those body corporate, located anywhere, who ensure(s) the same/equal
level of data protection that is adhered to by the body corporate as per the Rules. The
European Union Data Protection Drive lays down a very high threshold for understanding
the concept of privacy, and thus offers the same, if not more, protection and data privacy
than the rules in Indux. According to them, privacy can be understood as the right of an
individual to be free from unauthorized intrusion and the ability of that individual to
Page | 23
control and disseminate information that identifies or characterizes the individual.51 This
understanding of privacy is reflected in the data protection laws across countries in the EU
and the EU Data Protection Directive. In the instant case, the same is necessary for the
performance of lawful contract between the body corporate and information provider, and
the data provider has consented to the transfer.
8. Further, in the instant case, the same is necessary for the performance of lawful contract
between the body corporate and information provider, and the data provider has consented
to the transfer.
2.3. THAT THE CUSTOMERS INDEMNIFIED NGE WHEN THEY ENTERED INTO THE
CONTRACT
The contention that the shrink wrap contract is invalid has been refuted in the submissions
of the first issue. It is a valid contract which the customers entered into by their own
consent, and hence the indemnity clause contained therein is also valid. Thus, the customers
had already contracted out of any privacy requirement.
The Indian Contract Act in Section 124,52 defines a contract of indemnity as a contract by
which one party promises to save the other from loss caused to him by the conduct of the
promisor himself, or by the conduct of any other person. Indemnification is a valid and
legal element for contracts in India. It is understood that in an indemnity clause, either or all
parties agree to indemnify and hold harmless each other from all claims, losses, damage etc.
arising out of the contract.53
51
Elonnai Hickok, C.I.S Responds to Privacy Approach Paper, The Centre for Internet and Society, November
2010,
Available
at:
http://cis-india.org/internet-governance/blog/privacy/c.i.s-responds-to-privacy-
approachpaper.
52
Section 124, The Indian Contract Act, 1872.
53
Siddharth Sangal, Contract Review & Drafting Rules One Should Know, India L.J. Vol. 5, Issue 3, Art. 2
Page | 24
3. WHETHER THE PATENT ON BULBTECH WAS VALIDLY GRANTED TO NGE?

It is most humbly submitted before this Honourable Court that the patent on BulbTech was
validly granted to NGE. In the instant case, the High Court of Channel held that BulbTech
was a patentable invention in the first place.
The fundamental principle of Patent Law regime in India is that for a patent to be granted, it
should be new or novel, should have an inventive step, and should have some industrial
utility. That is to say, it should be new and useful in nature. In essence, for the patent to be
patentable according to the law laid down in Section 3(d) of the Patents Act 1970, the
invention needs to be an actual discovery of the inventor and not a mere replication of a
known substance or item. Furthermore, to follow the law as laid down in the provisions of
Section 3, the invention to be patented needs to pass the test of Novelty, Utility and Nonobviousness (Inventive step).
3.1. THAT THE INVENTION FULFILS THE TESTS OF NOVELTY, UTILITY, AND
INVENTIVE STEP.
1. It is submitted before the Hon'ble Court that S.2(1)(j)54 of the Patents Act of 1970, which
traces its roots to the language laid down in the Trade Related Aspects of Intellectual
Property Rights (TRIPS) Agreement, 1994, defines the term 'invention', whereas S.
2(1)(ja)55 defines the term 'inventive step'.
2. In the case of TVS Motor Co. v. Bajaj Auto Ltd,56 after analysing the decisions of both
English as well as Indian cases, the Court held that while analysing a claimed invention, it
is relevant to examine as to whether the invention required independent thought, ingenuity
and skill, and produced a distinctive form with a more efficient result. Further, it was held
54
Section 2(1)(j), The Patents Act, 1970: "invention" means a new product or process involving an inventive
step and capable of industrial application;

55
S.2(1)(ja), The Patents Act, 1970: "inventive step" means a feature of an invention that involves technical
advance as compared to the existing knowledge or having economic significance or both and that makes the
invention not obvious to a person skilled in the art;
56
4 Mad LJ 849.
Page | 25
in Novartis AG v. Union of India,57 that Section 2(1)(j) defines 'invention' to mean, 'a new
product or...', but the new product may not necessarily mean something altogether new or
completely unfamiliar or strange or not existing before. It may mean something 'different
from a recent previous' or 'one regarded as better than what went before" or "in addition to
another or others of the same kind'.58
3. In the instant case, NGE introduced various new development oriented technologies to
Indux.59 One of these technologies was Barium Arsenide Phosphide (BAP), considered a
novel step in the field of integrated circuits in relation to LED. Further, NGE heated BAP
at a particular temperature, and added a certain quantity of Nitrogen as an impurity to
increase the longevity of the product. In Gandhimathi Appliances Ltd v. LG Varadaraju,60
the Division bench of the Madras High Court held that inventive steps by way of ingenuity
and skill were required to be displayed in bringing about such a combination and
discovering the mode of application for a product, were considered material in conferring
inventiveness.
4. The Counsel for the Respondents humbly submits before the Hon'ble Apex Court that
BulbTech is a full-fledged invention that has unique characteristics and a notable
improvement in efficacy, and that it clearly passes the test of novelty. Not only is
BulbTech a new product, it also involves an inventive step. Here, the process of heating
the product and adding Nitrogen as an impurity to improve the longevity fulfils the
condition of 'Complexity of Work' and that of 'Long Felt Need' as given under the list of
factors that are indicative of an inventive step under The Draft Manual of Patent Practice
and Procedure, 2008. 61 Further, it is perfectly capable of industrial application as defined
under S.2(ac)62 of the Patents Act, 1970, since BulbTech can last for a hundred years
without getting fused or spoilt. Hence, it is submitted that BulbTech fulfils all the aspects
of an invention as given under S. 2(j) of the Patents Act, 1970.
57
2013 (6) SCC 1.
58
The New Oxford Dictionary of English, (1st Ed. 1998).
59
Moot Problem, 1.
60
(2000) 3 MLJ 85.
61
Rule 3.17, The Draft Manual of Patent Practice and Procedure, 2008.
62
Section 2(ac), The Patents Act, 1970: "capable of industrial application", in relation to an invention, means
that the invention is capable of being made or used in an industry;
Page | 26
3.2. THAT THE INVENTION DOES NOT FALL UNDER THE RESTRICTIONS OF S.3 OF
THE PATENTS ACT.
1. It is submitted before the Hon'ble Court that BulbTech is not a mere discovery of a new
form of a known substance, and neither is it a mere admixture. On the contrary, the
process of manufacturing BulbTech is a process with inventive steps involving human
intervention and therefore satisfying the definition of invention and thus, the provisions of
Section 3(d) 63 and 3(e)64 do not apply in the present case. Even if Section 3(d) is applied,
the subject compound is still patentable as it has shown significant enhancement of known
efficacy of the known substance.
2. The Counsel for the Respondents humbly submits before the Hon'ble Apex Court that
BulbTech is an invention as it is not hit by S. 3 of the Patents Act, 1970. S. 3 lays down
restrictions with respect to inventions, thus making it clear that there is no question of any
patent protection if a claim falls within these restrictions.
3. Further, it is submitted that S. 3(d) of the Patents Act, 1970 is not a provision that merely
bars certain subject matter from patentability. On the contrary, it provides that if the new
form of the known substance is found despite a structural similarity to demonstrate a better
functionality i.e. 'enhancement of the known efficacy', it would qualify for assessment
under Section 2(1)(j) as if it were a new product involving an inventive step, as held in the
case of Hoffmann-La Roche Ltd. v. Cipla Ltd.65
4. In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries,66 the Supreme Court
held that an improvement on something known before or a combination of different
matters already known should be something more than a mere workshop improvement,
63
Section 3(d), The Patents Act, 1970: the mere discovery of a new form of a known substance which does not
result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or
new use for a known substance or of the mere use of a known process, machine or apparatus unless such known
process results in a new product or employs at least one new reactant.
64
Section 3(e), The Patents Act, 1970: a substance obtained by a mere admixture resulting only in the
aggregation of the properties of the components thereof or a process for producing such substance;
65
2015(225) DLT 391.
66
AIR 1982 SC 1444.
Page | 27
and must independently satisfy the test of invention or an 'inventive step' in order to be
patentable. The improvement or combination had to either produce a new result, or a new
article or a better and cheaper article than before.
5. It is submitted before the Hon'ble Court that it is a settled principle of law, established in
Novartis AG v. Union of India,67 and in Glochem Industries Ltd. v. Cadila Healthcare
Ltd.,68 where the Division Bench of the Madras and Bombay High Courts respectively,
held that the amended section, i.e. S.3(d), only declares that the very discovery of a new
form of a known substance which does not result in the enhancement of the known
efficacy of that substance, will not be treated as an invention. The position therefore is,
that if the discovery of a new form of a known substance has an enhanced efficacy, it must
be treated as an invention.
6. The principle stated above was endorsed by the Intellectual Property Appellate Board
(IPAB) in Novartis AG v. Union of India.69 After an appeal, the Supreme Court upheld the
decision of IPAB and held70 that in order for a substance to be patentable, it must
demonstrate enhanced efficacy over and above the prior known substance.
7. The Counsel for the Respondent humbly submits before the Hon'ble Apex Court that
according to S.3(e) of the Patents Act, if the result achieved by the invention is more than
might be expected from a mere mixture, the invention is patentable. Thus, a patentable
combination is one in which the component elements are so combined as to produce a new
result or to arrive at an old result in a better or more expeditious manner, as held in
Lallubhai Chakubhai v. Chimanlal & Co.71
8. In order to overcome the Section 3(e) barrier, a patentee is required to prove that the
combination of the known substances has resulted in a 'synergism' wherein the
combination displays properties that are not displayed individually by each component.
67
(2007) 4 MLJ 1153.
68
AIR 2010 Bom 76.
69
M.P. Nos. 1 to 5/2007 in TA/1 to 5/2007/PT/CH; M.P. No. 33/2008 IN TA/1/2007/PT/CH and TA/1 to
5/2007/ PT/CH.
70
Supra, note 57.
71
AIR 1936 Bom 99.
Page | 28
Synergism can be found where one of the elements functions differently in combination
than it did previously, and that the combination results in an effect greater than the sum of
the several parts taken separately, as held in the case of Burland v. Trippe Mfg. Co.72
9. Thus, it is most reverentially submitted before the Hon'ble Court that BulbTech does not
fall under any of the restrictions put in place by S.3 of the Patents Act as it has shown
significant enhancement of efficacy of the known substance.
72
43 F 2d 588 (7th Cir 1976).
Page | 29
PRAYER
Wherefore, in the light of the facts stated, issues raised, argument advanced and authorities
cited, it is most humbly prayed by the Respondents in this matter that the Hon'ble Supreme
Court of Indux may be pleased to adjudge and declare:
1. That the impugned term in the contract is valid.

2. That the BulbTech contract be held intra vires and compliant with the data privacy
laws of Indux.
3. That the patent granted to NGE is valid.
And any other order that this Honble Court may deem fit, in the light of Justice, Equity and
Good Conscience.
For this act of kindness the Respondents shall forever humbly pray.
Respectfully Submitted by,

Counsel for the Respondents
Page | 30

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TEAM CODE: TN - 119

1ST SYMBIOSIS LAW SCHOOL, HYDERABAD

SPECIAL LEAVE PETITION NO. ______________/ 2016

BEFORE THE HONBLE SUPREME COURT OF INDUX

In the proceedings between

BULBTECH AGGRIEVED PARTIES GROUP (BAPG)

MOST RESPECTFULLY SUBMITTED

COUNSELS APPEARING ON BEHALF OF THE RESPONDENT

ISSUE 1. WHETHER THE SHRINK-WRAP CONTRACT WAS AN ENFORCEABLE

ISSUE 2. WHETHER NGE ACTED CONTRARY TO THE DATA PRIVACY LAWS OF

ISSUE 3. WHETHER THE PATENT ON BULBTECH WAS VALIDLY GRANTED TO

ISSUE 3.1 THAT THE INVENTION FULFILS THE TESTS OF 'NOVELTY,

MEMORIAL ON BEHALF OF THE RESPONDENT

RESTRICTIONS OF S.3 OF THE PATENTS ACT

MEMORIAL ON BEHALF OF THE RESPONDENT

All India Reporter

Barium Arsenide Phosphide

Intellectual Property Appellate Board

Reasonable Security Practices and Procedures and

Supreme Court of India

Supreme Court Cases

Supreme Court Reporter

Standard Form Contract

MEMORIAL ON BEHALF OF THE RESPONDENT

Alderslade v. Hendon Laundry Ltd

(1927) 43 TLR 323

AIR 1996 SC 2054

AIR 1982 SC 1444

AIR 1990 SC 540

1990 (3) SCC 481

43 F 2d 588 (7th Cir 1976)

[1986] 2 SCR 278

AIR 1954 SC 181

1 All E.R. 451 (1972)

Alison (J Gordon) Ltd. v. Wallsend Shipway and

DDA v. Jitender Pal Bhardwaj

AIR 2010 SC 497

Fender v. John Mildmay

Gandhimathi Appliances Ltd. v. LG Varadaraju

Gherulal Parekh v. Mahadeodas

(1959) 2 SCR 406

Glochem Industries Ltd. v. Cadila Healthcare Ltd.

AIR 2010 Bom 76

Hoffmann-La Roche Ltd. v. Cipla Ltd.

2015(225) DLT 391

Hollins v. J. Davey Ltd.

(1963) 1 All ER 370

J. Spurling Ltd. v. Bradshaw

(1956) 1 WLR 461

Lallubhai Chakubhai v. Chimanlal & Co.

AIR 1936 Bom 99

Lily White v. Munuswami

AIR 1966 Mad 13

AIR 1999 AP 106

AIR 1930 Pat 601

M/S Prakash Road Lines (P) Ltd. v. H.M.T.

AIR 1993 SC 998

Novartis AG v. Union of India

2013 (6) SCC 1

Novartis AG v. Union of India

(2007) 4 MLJ 1153

M.P. Nos. 1 to 5/2007 in TA/1

Novartis AG v. Union of India

to 5/2007/PT/CH; M.P. No.