In the recent judgment of Oppo v Interdigital, a Delhi High Court division bench delved into the issue of pro-tem measures in SEP infringement cases where parties are engaged in the same dispute in other jurisdictions (2024:DHC:4547-DB).

Case background

After protracted licensing negotiations, Interdigital filed an SEP infringement suit against Oppo before the Delhi High Court over patents related to 2G, 3G, 4G and 5G technologies. At the interim stage, Interdigital filed an application for pro-tem measures and requested that the single judge direct Oppo to deposit its last counteroffer with the court. Oppo and Interdigital are engaged in similar disputes in China and Germany. 

With consent from both parties, the judge passed an order allowing Oppo to supply a bank guarantee instead of depositing an amount. The guarantee was provided by HSBC Paris in relation to the ongoing dispute in Germany. The order imposed certain terms to ensure that encashment of the Global Bank Guarantee in any other dispute would not leave Interdigital remediless, and asked HSBC India to appear before the judge to record its acceptance of the terms. However, the bank made no appearance to confirm its willingness, so Oppo filed an application before the judge to allow it to present a bank guarantee issued by an Indian bank. The judge refused Oppo’s request and modified its previous order, directing Oppo to deposit the required amount with the court.

The judgment

Aggrieved, Oppo filed the present appeal before the division bench, which, after hearing extensive arguments, set aside the judge’s order.

The bench’s crucial observations were that:

• the judge was incorrect in modifying a consent order without the other party’s consent (ie, Oppo);
• the judge erred in passing directions to HSBC India because HSBC Paris and HSBC India are two separate entities; 
• the modification of Global Bank Guarantees could not have been done by the judge without the consent of HSBC Paris;
• pro-tem measures are intended for securing a plaintiff’s interests but are not to be used as punitive measures against a defendant; and
• the judge should not have refused Oppo’s application to furnish a bank guarantee from an Indian bank because it provides adequate security to the plaintiff. 

The division bench has now directed Oppo to furnish a bank guarantee from an Indian bank.

This judgment clarifies that in disputes involving pro-tem relief, foreign bank guarantees can be accepted by the courts – only if they explicitly cover Indian disputes.