Delhi HC relies on WayBack Machine evidence in patent infringement case

Internet archive allows users to see how websites looked in the past

The Delhi High Court on Thursday relied on the WayBack Machine to hold several persons guilty of patent infringement, marking the first time the digital archive of the web has been used in such a way.

The Machine, founded by the Internet Archive, a nonprofit based in San Francisco, allows users to see how websites looked in the past.

The suit was filed by Sugen Inc, an indirect subsidiary of US pharma firm Pfizer Inc, against K Vijaya Prakash and others for not following a High Court order of 2016.

The court found that Prakash and other defendants sold a drug akin to Sugen’s drug Crizotinib in an older version of their website. The court found the defendants guilty of infringing Sugen’s patent.

The court had on January 1, 2016, told the defendants to stop selling drugs similar in composition as that of Sugen’s. One of the defendants was a Bangladesh-based entity that appeared to have an established supply chain for its generic products in India, including Delhi.

“Even after the matter was decreed, Defendant’s infringing products were found to be listed on e-commerce third-party websites. Therefore, evidence was led on the contempt applications to establish a) relationship between the Defendants and b) the contumacious conduct of the Defendants,” the plaintiff said.

The defendants during trial were shown Wayback Machine’s archives of their website, indicating that the Bangladesh-based entity was their associated company.

“The case is unique since a contempt of court was found after extensive evidence was led by the parties based on a disputed internet document which the plaintiff was able to prove,” said advocate Pravin Anand, of Anand and Anand law firm, who appeared for the plaintiff.

“Plaintiffs have placed on record sufficient material on record in the form of printouts of the third-party websites where the infringing product was being sold as well as photographs of the infringing products purchased by the investigators engaged by the plaintiffs,” said the order by Justice Amit Bansal.