In a recent decision, the Delhi High Court has come down hard on 'forum shopping', where a petitioner seeks a court of choice in expectation of a favourable judgment. Microsoft Corporation had filed a case in the Delhi High Court alleging piracy, on the basis of reports generated by independent investigators hired by Microsoft.

Hiring private investigators to check for piracy is a common practice for most software firms. "Most large software groups hire investigators to search for software piracy," says a Bangalore based lawyer who does not wish to be named. Coming down strongly on the investigators, the Bench has held that the investigators were not qualified to opine expertly on whether or not the defendants were in violation of Microsoft's IP. In this case, one of the investigators was an indirect employee of a law firm appearing for the petitioners.

Dushyant Kumar Mahant, an Associate with Lall & Sethi who appeared for one of the defendants in the matters says, "Justice Ravindra Bhat, who was hearing one of the matters had framed issues to decide whether Microsoft indulged in entrapment and extortion, and whether the suit was filed with a malicious intent to discredit the defendants. Another issue was whether Microsoft was using the Court as a vehicle to promote their business." He declined to comment any further since the matter was sub judice.

Justice Dhingra did not take too kindly to the fact that despite Microsoft having offices in the same cities as the defendants, chose to file the suit in Delhi where none of the defendants had an office. "It has the added advantage of choosing a court of its own liking which is so far away from the defendant so that it becomes problematic and a harassment  for the defendant to contest the suit itself," he said, in the judgement.

He opined that the legislature should consider removing anomalies in IP laws and should consider allocation of original jurisdiction only to the District Courts. He added that the most appropriate forum for filing these suits would have been the places where Microsoft has offices and defendant also has office or place of work and the cause of action of infringement also took place.

Pravin Anand and Sai Krishna, the name Partners from Anand & Anand and Sai Krishna Associates respectively, appeared on behalf of Microsoft. Both Pravin Anand and Sai Krishna were unavailable over the phone. However, sources inform us that an appeal is in the works and will be filed soon.