Mumbai: India’s patents office has granted exclusive rights to an engine technology Bajaj Auto Ltd uses in all its motorcycles, which could land its rival TVS Motor Co. Ltd into trouble since it also uses the same technology in some of its bikes.
The Controller General of Patents, Designs and Trade Marks has granted a patent to Bajaj Auto, India’s second largest two-wheeler maker by volume, for its ExhausTEC invention, on the basis of an application filed on 6 August, 2004.
TVS Motors, the country’s third largest manufacturer of two-wheelers, uses the same technology, which significantly improves engine performance, in its Apache brand of motorcycles.
Shamnad Basheer, professor at Kolkata-based National University of Juridical Sciences, said TVS Motors would be selling the Apache bikes “at risk” since the patent is now in force, having been published in the 27 March edition of the Patent Gazette by the government of India.
“I am clueless, I have asked our legal counsel to look into the matter,” said Cecil K. Dewars, vice-president, corporate communications, TVS Motors.
“The patent arms us with power of infringement,” said S. Ravikumar, vice-president, Bajaj Auto. “Only time will tell what we do next.”
Bajaj Auto claims that it had seen use of its technology in TVS’s Apache model in August 2007. It then served notice on TVS on 12 December that year, alleging a potential infringement.
TVS retaliated by filing a pre-grant opposition on 24 December, 2007, at the patents office.
A pre-grant opposition challenges a patent application by citing documents available in the public domain which are called prior art, used to prove that the technology already exists.
The patents office quashed TVS’ pre-grant opposition on 5 March 2009.
Basheer said the next steps by the companies will be governed by the details of the claim.
“The company (TVS) can still take a shot at the patent and file a post-grant opposition within a year of the patent grant,” he said. “It’s still open for them to challenge it.”
“Alternatively, it can continue to sell the bike, questioning the very validity of the patent, and face Bajaj in the court should Bajaj file a legal suit.”
The quashing of pre-grant opposition doesn’t mean that the patent will remain valid, he said. “Having said that, with ruling in pre-grant opposition being in Bajaj’s favour, TVS’ chances are bleaker unless it brings out more prior art,” Basheer said.
This is the second conflict between the rivals over intellectual property rights.
The earlier clash occurred when TVS Motors unveiled its 125cc bike Flame in August 2007. At that time, Bajaj Auto alleged that TVS Motors had used the digital twin spark technology patented by it in 2002.
Following a February 2008 injunction by the Madras high court in favour of Bajaj Auto, TVS Motors had to withdraw and re-launch the motorcycle with single-spark technology. The injunction also barred TVS from using twin-spart technology on any of its subsequent products.