Life Technologies Corporation & ... vs Atz Lab Solutions (India) Pvt. ...
2014 Latest Caselaw 5245 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                      Date of Decision: October 18, 2014


+                   CM No.15408/2014 in FAO(OS) 255/2014

      LIFE TECHNOLOGIES
      CORPORATION & ANR.                                    ..... Appellants
               Represented by:             Mr.C.M.Lall, Advocate with
                                           Ms.Nancy Roy and Mr.Jayant
                                           Kumar, Advocates
                                  versus
      ATZ LAB SOLUTIONS (INDIA)
      PVT. LTD. & ORS.                          ..... Respondents
                Represented by: Mr.Arvind Nigam, Sr.Advocate
                                instructed by Mr.Ankur Sood,
                                Mr.Abhishek Saket, Mr.Amarjeet
                                Singh and Mr.Shoumendu
                                Mukherji, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. Language is a medium of communication, but we find that in Courts language becomes the subject matter of a debate. The reason is that it is possible to give different meanings to an expression or a word and twist with the syntax and play around with words.

2. Words and sentences express an idea and assist a literally composition; they express an idea or a concept.

3. It is difficult to write and speak with accuracy; not to speak of elegance. Seldom do people refer to a Thesaurus to find the right word or words with which to express themselves. Indeed, it would be not only time consuming but sometimes most irritating if one is compelled to keep on referring to a Thesaurus each time one speaks or writes so that the thoughts are embodied by homing the exact word or phrase one needs to choose. A Thesaurus is used for browsing at leisure in search of the most appropriate word to express ideas and expressions.

4. Our apology for the preface afore penned, for this would set the framework for our opinion on CM No.15408/2014.

5. Prayer made in the application is to set aside the order dated July 17, 2014 passed by this Bench allowing CM No.9141/2014, wherein prayer made was to condone the delay in filing the appeal.

6. In the order dated July 17, 2014, we had noted that the reasons for delay to be condoned as projected before us in CM No.9141/2014, which was a sketchy application and hence supplemented by an affidavit deposed to by Mr.Peter Y.Lee, the Vice-President and Chief Council, Intellectual Property of Thermo Fisher Scientific Inc, was that the appellant Life Technologies Corporation was acquired by another company named Thermo Fisher Scientific Inc and the acquisition was completed on February 03, 2014, which led to a change in the management. The new management took time to examine the case and

its implication flowing from the impugned order. We then noted facts concerning restructuring of the manpower and thereafter opined that it was not a case of supine indifference and negligence in prosecuting the appellate remedy.

7. It is pleaded in the application that the appellant mis-stated facts and misled the Court in believing as if Life Technologies Corporation Inc had been acquired, in the sense of there being a merger, with Thermo Fisher Scientific Inc. It is pleaded that it was the express case pleaded that Life Technologies Corporation Inc had merged with Thermo Fisher Scientific Inc, which was at variance with the stand taken in Suit No.85/2014 pending before ADJ.-II West in Tis Hazari Courts.

8. Learned senior counsel for the applicant referred to paragraphs 1, 2, 3, 4, 10 and 12 of the affidavit deposed to by Mr.Peter Y.Lee, which paragraphs read as under:-

"1. I am employed as Vice President and Chief Counsel, Intellectual Property with Thermo Fisher Scientific Inc. ("Thermo Fisher"), having been with the company since 2001. In my capacity of Vice President and Chief Counsel, Intellectual Property, I am responsible for an authorized to supervise and manage all intellectual property matters of Thermo Fisher.

2. Thermo Fisher acquired Life Technologies Corporation ("Life"), with the acquisition completed on February 03, 2014.

3. The acquisition of Life by Thermo Fisher was a substantial transaction. Thermo Fisher paid approximately in terms of Indian Rupees 81,709 crores, plus the assumption of

debt, amounting to `9,012 crores to acquire the world-wise business of Life, including but not limited to all of Life‟s patents, trademarks, and other intellectual property. This acquisition was very significant in the life science industry in the US and world-wide. Thermo Fisher is a large, multinational corporation, which prior to its acquisition of Life had approximately 40,000 employees worldwide. Life Technologies is a world leader for biological research of genes, proteins and cells, offering best in class products for academic and life sciences research, clinical research, and commercial applications. Life Technologies‟ genetic sequencing systems, human DNA detection and analysis products, and gene cloning and expression technologies support scientific discoveries aimed at determining the cause of many debilitating human diseases. It is believed that the analysis of DNA of individual human genomes as well as of disease pathogens could hold the cure for many of these human diseases in the future, and Life Technologies is one of the leading enablers of scientific research into such potential cures.

4. After the acquisition of Life, the combined company grew by twenty five percent, to a total of approximately 50,000 employees across fifty countries. The assimilation of over 10,000 new employees and operations in locations throughout the world is a substantial undertaking, requiring significant resources, planning and commitments of time.

10. As a result of the departure of Life‟s Vice President of Intellectual Property, I assumed responsibility on February 26, 2014 for the intellectual property matters of Life (now referred to as the Life Sciences Solutions Group of Thermo Fisher), a role I remain in today. This is in addition to my role as Vice President and Chief Counsel, Intellectual Property for Thermo Fisher.

12. In connection with my interim role, and as part of my role in assimilating the intellectual property and litigation terms of Life into Thermo Fisher, a Life Sciences Solutions Group meeting was held on April 1 - 3, 2014 in Carlsbad, California. At the end of that meeting, including over 100 lawyers, paralegals, administrators and licensing executives, multiple action committees were formed to account for and analyze the numerous types of intellectual property issues identified as requiring further study in the acquired Life company. The first set of integration recommendations and "report outs" from those action committees will be due in July 2014. During this meeting, I was informed about the existence of the India trademark litigation, as well as forty other litigations around the world, but I was not yet made aware of the deadline for filing an appeal in the Life Technologies trademark case (by April 26, 2014) as of this date."

9. The word 'acquisition' in paragraph 2 and 3 of the affidavit, and the expressions 'acquisition‟ and „assimilate‟ in the other paragraphs were highlighted to urge that it was the case of the appellant that there was a merger, acquisition and assimilation of the two companies, meaning thereby, one lost its identity and only the other remained.

10. Reference was made to paragraph 5 also of the affidavit which reads as under:-

"5. There were significant challenges involved in the integration of Life into Thermo Fisher. As is common with any acquisition of such magnitude, there is sometimes a synergy of staffing between two large companies, so that a certain number of executive functions and employees by necessity would leave the company and this creates a void and temporary discontinuity. One of those challenges has been the departure of personnel from Life as a result of this acquisition. In regard

to this case before the Court specifically, several key employees (as discussed below) with both historical, institutional knowledge concerning the facts underlying the current litigation, as well as primary responsibility for developing and overseeing the overall litigation strategy, left the company."

11. It was urged that said paragraph of the affidavit would evince that as per Mr.Peter Y.Lee the integration of the appellant Life Technologies Corporation Inc into Thermo Fisher Scientific Inc was a case of not a simple acquisition but a case of merger.

12. The expressions 'acquisition', 'assimilation‟ and 'integration' have obviously been used by the appellant not with reference to the Thesaurus. The expressions have been used as in conversation (where the most appropriate word is sometimes lost in the speech). Holistically and meaningfully read, the application and affidavit conveyed to the Court that the majority shareholders who were in the management of Life Technologies Corporation Inc acquired the controlling shares and hence the management of Thermo Fisher Scientific Inc. The process of purchase of share and taking over the management was completed by February 03, 2014. It was followed by integrating the working of the two companies (and not the integration of the two companies). As usually happens, when companies are taken over, pruning of manpower takes place and it does happen that people take dual charge i.e. look after the affairs in two companies. Mr.Peter Y.Lee has clearly stated in paragraph 10 that because the Vice-President of Intellectual Property of Life Technologies Corporation Inc left the company he assumed

responsibilities for the Intellectual Property Matters of said company because he was working as the Vice-President and Chief Council Intellectual Property in Thermo Fisher Scientific Inc. He has clearly stated 'this is in addition to my role as Vice President and Chief Council, Intellectual Property for Thermo Fisher'.

13. We thus do not find any contradiction in the stand taken by the appellant in the appeal and before the learned ASJ.-II West, Tis Hazari Courts as sought to be projected in the application. The clear stand is that Life Technologies Corporation Inc and Thermo Fisher Scientific Inc exist as two distinct legal entities with a common management and control after the controlling interest of Life Technologies Corporation Inc was taken over by those who were in the control and management of Thermo Fisher Scientific Corporation Inc.

14. The application is dismissed with cost in sum of `50,000/- to be paid by the applicant/ respondent to the non-applicant/appellant, and this would actually the restitution for the reason while condoning the delay in filing the appeal and allowing CM No.9141/2014 we had imposed `50,000/- cost upon the appellant, which amount flows back to its coffers because we find that a frivolous application has been filed by the respondent and the appellant needs to be recompensed for defending a frivolous application.

15. Cost shall be paid within two weeks.

FAO (OS) No.255/2014 List for consideration on November 17, 2014.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE OCTOBER 18, 2014 mamta