002A

002A
4TH ANNUAL JINDAL TECHNOLOGY LAW & POLICY MOOT COURT COMPETITION, 2019
BEFORE
THE HONOURABLE SUPREME COURT OF INDRAHAAR
MEMORIAL ON BEHALF OF THE APPELLANTS
APPEAL FILED UNDER SECTION 53-T OF THE COMPETITION ACT, 2002
APPEAL NO. ____/2019
RHINE VALLEY CORPORATION…………………………………………….…APPELLANT 1
RHINE VALLEY VAULT SERVICES……………………………………………APPELLANT 2
VERSUS
SWADESHI TECHNOLOGY PVT. LTD……………………………………….... RESPONDENT 1
CLUBBED WITH
SLP NO. ____/2019
RHINE VALLEY CORPORATION…………………………………………….…APPELLANT 1
RHINE VALLEY VAULT SERVICES……………………………………………APPELLANT 2
VERSUS
CENTRE FOR NETIZENS OF INDRAHAAR……………………………………..RESPONDENT 2

4TH JINDAL MOOT COURT COMPETITION, 2019 Page |1
TABLE OF CONTENTS
▪ INDEX OF AUTHORITIES……………………………...…………………………...……….3
➢ LIST OF CASES………………………………………………………...…………….3
➢ STATUTES………………………………………………………………………...…7
➢ BOOKS………………………………………………………………………………8
➢ LEXICONS……………………………………………………………………………9
➢ ARTICLES……………………………………………………………………………9
➢ LEGAL DATABASES………………………………………………………………….9
▪ LIST OF ABBREVIATION………………………………………………………………..…10
▪ STATEMENT OF FACTS……………………………………………………………………11
▪ STATEMENT OF JURISDICTION…………………………………………………………...13
▪ QUESTIONS PRESENTED ……………………………………………………………….…14
▪ SUMMARY OF ARGUMENTS………………………………………………………………15
▪ ARGUMENTS ADVANCED………………………………………………………………….17
ISSUE I: WHETHER CCI HAS ERRED IN HOLDING THE JURISDICTION OVER THE MATTER?............17
[A]INFORMATION DOES NOT COME IN GOODS AND SERVICES UNDER THE AMBIT OF
COMPETITION ACT, 2002…………………………………………………………………..17
[A.1] Information is not a good…………………………………..……………………18
[A.2] Information is not a service……………………………………………………...18
[B]THERE DOES NOT EXIST A PRIMA FACIE CASE……………………………………………..19
[C]ALTERNATE REMEDIES ARE NOT EXHAUSTED……………………………………………...20
[C.1] Most appropriate forum…………………………………………………………21
ISSUE II: WHETHER PATENT SHOULD BE GRANTED TO RVV? …………………………….…...21
[A]JUDICIAL OVERREACH BY SUPREME COURT………………………………………………..21
[B] COMPUTER IMPLEMENTED TECHNOLOGY BY RVV IS A PATENTABLE SUBJECT

MATTER………………….............………………………………………………………...22
[C]COMPUTER IMPLEMENTED TECHNOLOGY OF RVV IS NOVEL……………………………...23
[D] COMPUTER IMPLEMENTED TECHNOLOGY – RVV’s INVENTIVE STEP……………………...24
MEMORIAL ON BEHALF OF APPELLANTS

[E]INDUSTRIAL APPLICABILITY OF THE COMPUTER IMPLEMENTED TECHNOLOGY…………….25
ISSUE III: WHETHER RVV & RHINE VALLEY HAVE VIOLATED SECTION 3 OF THE COMPETITION
ACT?.............................................................................................................................................26
[A]RVV’S AGREEMENT AS AN EXEMPTION UNDER SECTION 3(5) …………………………....26

[A.1] Database of RVV is copyrightable........................................................................26
[A.2] Reasonable conditions imposed in the disputed agreement..................................27
[B]NO ACTION OF RVV & RHINE VALLEY SHOWCASES AN ANTI-COMPETITIVE CONDUCT…...28
[B.1] No exclusive supply agreement between RVV & Rhine Valley or any other
MNC……………………………………………………………………………………28
[B.2] No exclusive distribution agreement between RVV & Rhine Valley or any other
MNC……………………………………………………………………………………29
[B.3] No refusal to deal by RVV to Swadeshi-Tech ………………………………..….29
[C] NO APPRECIABLE ADVERSE EFFECT ON COMPETITION…………………………………….30
ISSUE IV: WHETHER RVV & RHINE VALLEY HAVE VIOLATED SECTION 4 OF THE
COMPETITION ACT?.....................................................................................................................31
[A] NO VIOLATION OF SECTION 4(2) (E) OF THE COMPETITION ACT………………………….31

[A.1] Relevant markets of RVV & Rhine Valley………………………………………..32
[A.2] No favourable treatment by RVV to Rhine Valley……………………………….33
[A.3] Markets of RVV & Rhine Valley are not associated……………………………..34
[B] NO DENIAL TO MARKET ACCESS ON PART OF RVV………………………………………35
[B.1] Specific performance of the contract is fulfilled by RVV …………......................35
[B.2] Personal data is not an essential facility for Swadeshi-tech…………………….36
ISSUE V: WHETHER RVV HAS VIOLATED PRIVACY OF THE CITIZENS OF INDRAHAAR? ………...37
[A]THERE IS NO LAW REGULATING DATA PRIVACY OF CITIZENS OF INDRAHAAR………….....37
[B] RVV HAS COMPLIED WITH THE NORMS OF IT (REASONABLE SECURITY PRACTICES
&PROCEDURE AND SENSITIVE PERSONAL DATA OR INFORMATION) RULES, 2011………..38
[B.1] RVV is not negligent in maintaining reasonable security for data protection…..38
[B.2] RVV through Rhine valley had taken prior consent…………………………..….38
▪ PRAYER………………………………………………………………………………40

INDEX OF AUTHORITIES
• LIST OF CASES
[A] SUPREME COURT CASES
SR. NO. CASE LAW NAME PAGE
1. Punjab Urban Planning and Development Authority v. Mandeep Singh & 17

Others, (2016) 7 SCC 571.
2. Kamlesh Kohli & Others v. Escotrack Finance & Investment Limited & 17
Others, (2000) 1 SCC 324.
3. J. Jaylalitha v. Union of India, (1999) 5 SCC 138. 18
4. State of Bombay v. RMD Chamarbaugwala, (1957) AIR 699 SC. 19
5. Rohit Pulp & Paper Mills Ltd. v. Collector of Central Excise, (1991) AIR 19
754,761 SC.
6. Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer, 19
(2004) 1 SCC 755.
7. CCI v. Bharti Airtel Ltd. &Ors, 2018 SCC Online SC 2678. 20
8. Eastern Book Company v. D.B Modak, (2008) 1 SCC 1. 27
9. CCI v. Bharti Airtel ltd., (2019) 2 SCC 521. 21
10. Bishwanath Prakash Radhey Sham v. Hindustan Metal Industries, (1979) 24

2 SCC 511.
11. Novartis AG v. Union of India & Others, (2013) 6 SCC 1. 24
12. Monsanto Technology LLC v. Nuziveedu Seeds Ltd., 2019 SCC Online 25
SC 25.
13. Tata Teleservices ltd. v. BSNL ltd.& ors, (2008) 10 SCC 556. 25
14. CCI v. Fast Way Transmission Pvt. Ltd., (2018) 4 SCC 316. 31
[B] HIGH COURT CASES

1. Bombay Agarwal co. v. Ramchand Diwanchand, AIR 1953 Nag 154. 21
2. Lallubhai Chakubhai Jariwala v Chimanlal Chunilal and Co, 1935 SCC 23

Online Bom 20.
3. Novartis AG V. Mehar Pharma & Ors., 2004 SCC Online Bom 1063. 24,25

4. Burlington Home Shopping Ltd, v. Rajnish Chibber, (1995) 6 DLT61. 26
5. Govindan v. Gopalakrishna, (1955) AIR391 (Mad.) (India). 26
6. Tech Plus media Pvt. Ltd. v. Jyotijanda & Ors., 2014 SCC Online Del 26
1819.
7. Diljeet Titus v. Alfred A. Adebare, (2006) 130 DLT 330. 27
8. The State of Madras v. Ramalingam and Co, AIR 1956 Mad 695. 34
[C] CCI, NCLAT & OTHER TRIBUNAL CASES

1. Vinod Kumar Gupta v. Whatsapp Inc., (2017) 82 taxmann.com 272 (CCI). 21
2. Council for Scientific & Industrial Research v. Hindustan Lever Ltd., 2015 25
SCC Online IPAB 107.
3. K. Sera Sera Digital India Ltd. v. Pen India Ltd, [2017] 83 taxmann.com 27
11(CCI).
4. Nandu Ahuja v. Competition Commission of India, [2014] 42 27
taxmann.com 487 (CAT).
5. FICCI Multiplex Association of India Federation House v. United 27
Producers/Distributors Forum, 2011 SCC Online CCI 33.
6. Indiacan Education Pvt. Ltd. v. Aldine Ventures Pvt. Ltd, [2016] 76 27
taxmann.com 140 (CCI).
7. Keerthy krishanan v. Bharat Petroleum Corp. Ltd. (BPCL) Mumbai, 2013 28
SCC Online CCI 27.
8. Vishal Pande v. Honda Motorcycles & Scooters India Pvt. Ltd., [2018] 92 28,29
9. JHS Svendgaard Laboratories Ltd. v. Procter & Gamble Home Products 28
Ltd, [2014] 41 taxmann.com 363 (CCI).
10. NK Natural Foods Ltd. v. Akshya Ltd, [2014] 44 taxmann.com 216 (CCI). 29
11. Dilip Modwil v. Insurance Regulatory & Development Authority, [2014] 29
51 taxmann.com 308 (CCI).
12. Shamsher Kataria v. Honda Siel Cars India Ltd, [2015] 59 taxmann.com 29,30
419 (CCI).
13. Ghanshyam Daas Vij v. Bajaj Corp. Ltd, [2016] 68 taxmann.com 63 (CCI). 29

14. Alkem Laboratories v. CCI, [2016] 70 taxmann.com 48 (CAT). 29

15. Cupid Ltd. v. Ministry of Health & Family Welfare, Government of India, 30
[2019] 101 taxmann.com 369 (CCI).
16. Mohit Manglani v. Flipkart India Pvt. Ltd, [2015] 57 taxmann.com 57 30
(CCI).
17. Counfreedise v. Times Group India, [2018] 97 taxmann.com 290 (CCI). 30
18. G. Krishna Moorty v. Karnataka Films Chamber of Commerce, [2018] 97 30
19. Sudeep PMV v. Kerala Chemist & Druggist Association, [2017] 87 30
20. Schott Glass India Pvt Ltd v. CCI, [2014] 45 taxmann.com 157 (CAT). 31
21. XYZ v. REC Power Distribution, 2015 SCC Online CCI 8. 31,33
22. Pankaj Agarwal v. DLF Gurgoan Home Developers Pvt. Ltd, 2015 Comp 31
LR 728 (CCI).
23. GKB Hi Tech Lenses Pvt. Ltd. v. Transition Optical India Pvt. Ltd, Case 31
No. 55/2012 (CCI).
24. Om Dutt Sharma v. Competition Commission of India., 2015 Comp LR 31
529 (Comp AT)
25. Jindal Steel & Power Ltd. v. Steel Authority of India Ltd, (2012) 107 CLA 32
278 (CCI).
26. Ess Cee Securities Pvt. Ltd. v. Competition Commission of India, [2017] 32
77 taxmann.com 89 (CAT).
27. Dr. Heeranandani Hospital v. CCI, [2015] 65 taxmann.com 65. 32
28. M/S Maharastra State Power Generation Co. Ltd. v. M/s. Mahanadi 32
Coalfields Ltd. &ors, 2013 Comp LR 910 (CCI).
29. Saint Gobain Glass India Ltd. v. Gujrat Gas Company Ltd., 2015 Comp 32
LR 431 (CCI).
30. India Trade Promotion Organization, Pragatibhavan, New Delhi v. CCI & 32
Ors, 2016 SCC Online Comp AT 452.
31. Pan India Infra Projects Pvt. Ltd. v. CCI, [2015] 57 taxmann.com 388 33
(CAT).
32. Bharti Airtel Ltd. v. Reliance Industries Ltd, [2017] 82 taxmann.com 33,34
43(CCI).

33. Shri v. Ramchandra Reddy &Ors. v. HDFC bank &ors., (2011) CCI 28. 33
34. Financial Software & Systems Pvt. Ltd. v. M/S ACI &ors, Case 52/2013, 33
(CCI).
35. MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd, 34
[2011] 13 taxmann.com 110 (CCI).
36. Just Ticket Pvt. Ltd. v. Big Tree Entertainment Pvt. Ltd, [2017] 80 34
37. Matrimony.com v. Google India Pvt. Ltd, (2018) CCI 1. 34
38. Turbo Aviation Pvt. Ltd. v. Bangalore International Airport Ltd, [2016] 66 34
39. Hemant Sharma v. AICF, [2018] 96 taxmann.com 35 (CCI). 35
40. Arshiya Rail Infrastructure Limited (ARIL) v. Ministry of Railways, 36
[2012] 27 taxmann.com 25 (CCI).
[D] FOREIGN CASES

1. Force India Formula One Team Ltd v. 1 Malaysia Racing Team SDN BHD, 18
[2012] RPC 29 [378].
2. Stephen John Coogan v. News Group Newspapers Ltd. & Glenn Michael 18
Mullcaire, 392 ALL ER 74 (2012, Court of Appeal).
3. Angus Robertson v. George Day, 5 AC 63, 69 (1879). 19
4. Boardman v Phipps, [1967] 2 AC 46. 18
5. American Cyanamid v. Ethicon Ltd., 2 WLR 316, 323 (1975). 19
6. Deutsche Telekom v. European Commission, C-280/08 P, Judgment dated 20
14.10.2010.
7. In Re DoubleClick Inc. Privacy Litigation, No. 00-0641, 2002 U.S. Dist. 38
LEXIS 270999 (S.D.N.Y. 32rd May, 2002).
8. Lantana Limited v. Comptroller General of Patents, [2014] EWCA Civ 22
1463.
9. Vicom/Computer related invention, (Decision T 208/84) [1987] 2 EPOBA 23
74.
10. Koch and Sterzel, In re, 1988 EPOR 72. 23

11. IBM/Computer Programs II, (Decision T 935/97) [1999] RPC 861. 23

12. LJ Mullard v. Philip Co., (1953) 52 RPC 33 at 287. 25
13. National Society of Professional Engineers v. United States, 435 US 679 30
(1978).
14. United States Football League v. National Football league, 842 F.2d 1335 33
(1988).
15. Tetra Pak International SA v. Commission, (1996) ECR I-595. 34
16. A E Farr Ltd. v. The Admiralty, [1953] 2 All ER 512. 35
17. Gardiner v. Moore, [1969] 1 QB 55 734. 35
18. Oscar Bronner GmbH & Co. Kg v. Mediaprint Zietung (case c-7/97 [1999] 35
4 CMLR 112).
19. Twin Labs v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir. 1990). 36
20. MCI Communications Corp. v. AT&T. 7 FCC Rcd. 807 (1992). 36
• STATUTES
SR. NO. NAME OF STATUTE
1. Competition Act 2002, No 12, Acts of Parliament, 2002.
2. The Patents Act, 1970, NO. 39, Acts of Parliament, 1970.
3. Copyright Act, 1957, No. 14, Acts of Parliament, 1957(India).
4. Information Technology Act, 2000, No. 27, Acts of Parliament, 2000.
5. Information Technology (Reasonable Security Practices & Procedures & sensitive

Personal Data or Information) Rules, 2011.
6. Sales of Goods act, 1930, No. 13, Acts of Parliament, 1930.

• BOOKS
[A] COMPETITION LAW
SR. NO. PARTICULARS
1. S.M DUGAR, GUIDE TO COMPETITION LAW (ed. 6, LEXIS NEXIS).
2. DR. S.C. TRIPATHI, COMPETITION LAW (ed. 2017, CENTRAL LAW PUBLICATIONS).
3. DR. AVATAR SINGH, COMPETITION LAW, (ed. 2012, EASTERN BOOK COMPANY).
4. VERSHAVAHINI, INDIAN COMPETITION LAW, (ed. 2016, LEXIS NEXIS).
5. ABIR ROY, COMPETITION LAW IN INDIA (ed. 2016, KLUWER LAW INTERNATIONAL).
6. D.P MITTAL, COMPETITION LAW & PRACTICE (ed. 3, TAXMANN).
7. R. WHISH & DAVID BAILEY, COMPETITION LAW (ed.7, OXFORD UNIVERSITY PRESS).
[B] INTELLECTUAL PROPERTY RIGHTS
SR. NO. PARTICULARS.
1. JAI SHRI WATAL, IP RIGHTS (ed. 2012, OXFORD UNIVERSITY PRESS).
2. ELIZABETH VERKEY, LAW OF PATENTS (ed. 2010, EASTERN BOOK COMPANY).
3. ANAND PADMANABHAN, INTELLECTUAL PROPERTY RIGHTS (ed. 2012, LEXIS NEXIS).
4. MB RAO & M. GURU, PATENT LAWS (ed. 2010, KLUWER LAW INTERNATIONAL).
[C] CONSTITUTIONAL LAW & INTERPRETATION OF STATUTES
SR. NO. PARTICULARS.
1. M.P JAIN, INDIAN CONSTITUTION LAW (ed. 8, LEXIS NEXIS).
2. D.D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (ed. 9, LEXIS NEXIS).
3. ARVIND P. DATAR, CONSTITUTION OF INDIA, (ed. 2, LEXIS NEXIS).
4. JUSTICE G.P SINGH, INTERPRETATION OF STATUTES, (ed. 11, LEXIS NEXIS).
5. MAXWELL, INTERPRETATION OF STATUTES, (ed. 12, Sweet & Maxwell).

• LEXICONS
SR. NO. PARTICULARS
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (ed. 9, WEST GROUP).
2. P. RAMANATHA AIYAR, ADVANCED LAW LEXICON, (ed. 5, LEXIS NEXIS).
• ARTICLES
SR. NO. PARTICULARS
1. Jay Modrall, Big data and algorithms: Focussing the discussion, Oxford University
(Jan 15, 2018), 73 OX LJ 38 (2018).
2. Ariel Ezrachi, EU Competition Law Goals and the Digital Economy, 17 Ox. L.S. 733
(2018).
3. John Kleinig, The Nature of Consent in The Ethics of Consent- Theory and Practice
(Alan Wertheimer and Franklin Miller (eds.), Oxford University Press, 2009).
4. Inge Graef, Data Portability and Data Control: Lessons for an Emerging Concept in
EU Law, 19 German LJ 1359 (2018).
• LEGAL DATABASES
SR. NO. PARTICULARS
1. HEINONLINE
2. KLUWER
3. LEXIS NEXIS
4. MANUPATRA
5. SCC ONLINE
6. WEST LAW
7. TAXMANN

4TH JINDAL MOOT COURT COMPETITION, 2019 P a g e | 10
LIST OF ABBREVIATIONS
SR. NO. ABBREVIATION EXPANSION
1. § Section
2. ¶ Paragraph
3. & And
4. AIR All India Reporter
5. Anr. Another
6. SCC Supreme Court Cases
7. CCI Competition Commission of Indrahaar
8. NCLAT National Company Law Appellate Tribunal
9. SC Supreme Court
10. EU European Union
11. RVV Rhine Valley Vault Services
12. Comp AT Competition Appellate Tribunal
13. Comp LR Competition Law Review
14. Ed. Edition
15. HC High Court
16. Hon’ble Honourable
17. IPAB Intellectual Property Appellate Board
18. UOI Union of India
19. v. Versus
20. u/s Under Section
21. Ltd. Limited

STATEMENT OF FACTS
INTRODUCTION: Indrahaar is a republic in South Asia, whose laws are pari materia with the
laws of India, with the limited exceptions laid out in this Proposition.
PARTIES TO THE CASE: RHINE VALLEY & RHINE VALLEY VAULT SERVICES (RVV): Rhine
Valley is a Frankburg (EU) based company which acts as an Online Market Place (“OMP”) for
third party retailers, having a market share of 45% (as of 2019). Rhine Valley has 49%
shareholding in its associate company, Rhine Valley Vault Services (“RVV”),whose 51%
shares are held by Mr. Leon Chef(CEO of RVV, MD of Rhine Valley).Mr. Chef, with team of
computer engineers and data scientist, developed a computer implemented technology
consisting of (1) a computing platform, and (2) an algorithm, over which RVV secured its
patent in 2013 in Frankburg and filed a patent in India. While RVV provides the infrastructure
services to 15 different companies, these companies feed their own information into the
databank, including individual contact details, bank account details, travel records, search
history and personal preferences. This information is kept highly confidential, and is available
only to those companies which contribute to the database.
SWADESHI TECHNOLOGY PVT. LTD.(“SWADESHI-TECH”): It is an ecommerce player, having
market share of 35% (as of 2018) in the market of OMPs in Indrahaar, with Rhine Valley being
its main competition.
FACTUAL BACKGROUND: In December 2017, Swadeshi-Tech contracted with RVV on a
monthly basis at the rate of USD 50,000 per month- “RVV agrees to provide Swadeshi-Tech
with all relevant contact details of its customers as available in its databank including, but not
limited to, telephone numbers, e-mail addresses, and physical delivery addresses”, with the
condition that RVV is at liberty to revise the rate at its own discretion, In March, 2018
Swadeshi Tech, learns that RVV had other information regarding customers such as search

history and personal preferences, after a press release by DG Competition of European
Commission.
JUDICIAL BACKGROUND: COMPLAINT TO CCI: In August 2018, Swadeshi-Tech complained
that Rhine Valley, through RVV, had violated provisions of the Competition Act, specifically,
§3(4)(d), §3(4)(b), §3(4)(c) denial of access to RVV’s databank and §4(2)(e).
Contemporaneously, the Centre for Netizens of Indrahaar (“CNI”) approached CCI for a
violation of data privacy by RVV.
CONTENTIONS OF RVV AND RHINE VALLEY: They contended that (i) the confidential nature
of information comes under the exception of §3 (ii) the information in the databank is not a
good or service under the ambit of the Competition Act, but is a result of patented technology –
accordingly, the CCI does not have the jurisdiction to hear the matter, (iv) there is no
legislation in place in Indrahaar governing privacy and data security related concerns.
CCI’S JURISDICTION: CCI confirmed its jurisdiction and gave the decision in favour of RVV.
SWADESHI-TECH AND CNI’S APPEAL TO NCLAT: NCLAT confirmed CCI’s jurisdiction, but
held that the CCI erred in interpreting the scope of the Competition Act narrowly.
APPEALS: Rhine Valley, RVV, and the CCI approached the Supreme Court of Indrahaar (SC)
to decide on the merits of the matter. Also, CNI files a Special Leave Petition U/A 136 of the
Constitution of Indrahaar for deliberation on the privacy and data security related concerns.
SC has decided to club the appeals and also (1) withdraw the application of patent by RVV,
pending before the Indrahaar Patent Office, and (2) decide on the question of the grant of
patent to RVV.

STATEMENT OF JURISDICTION
APPEAL- I
The appellants i.e. RVV & Rhine Valley have approached the Hon’ble Supreme Court of
Indrahaar invoking its appellate jurisdiction under §53T of the competition act of Indrahaar.
APPEAL- II
The respondent-II i.e. CNI have approached the Hon’ble Supreme Court of Indrahaar under
Article 136 of the Constitution of Indrahaar.
CLUBBING OF APPEALS
The Hon’ble Supreme Court under the inherent power has clubbed the appeals together under
order “LV”, Rule 5 of the Supreme Court Rules, 2013.

QUESTIONS PRESENTED
APPEAL - I
~ISSUE I~
WHETHER CCI HAS ERRED IN HOLDING THE JURISDICTION OVER THE MATTER?
~ISSUE II~
WHETHER PATENT SHOULD BE GRANTED TO RVV?
~ISSUE III~
WHETHER RVV & RHINE VALLEY HAVE VIOLATED SECTION 3 OF THE COMPETITION
ACT?
~ISSUE IV~
WHETHER RVV & RHINE VALLEY HAVE VIOLATED SECTION 4 OF THE COMPETITION
ACT?
APPEAL - II
~ISSUE V~
WHETHER RVV HAS VIOLATED PRIVACY OF THE CITIZENS OF INDRAHAAR?

SUMMARY OF ARGUMENTS
~ISSUE I~
WHETHER CCI HAS ERRED IN HOLDING THE JURISDICTION OVER THE MATTER?
It is humbly submitted before the Hon’ble Supreme Court of Indrahaar that CCI has no
jurisdiction in the instant matter because information in the databank is not a good or service.
Since, information is not a property, it is not covered by the definition of ‘goods’ whereas it is
also not a ‘service’ because definition of service as referred in the competition act is used in the
sense of news information and not database information. Also, privacy & data security
concerns are not regulated under competition act.
~ISSUE II~
WHETHER PATENT SHOULD BE GRANTED TO RVV?
It is humbly submitted before the Hon’ble court that the Apex Court must not intervene in the
process established by an act of the Parliament. The Patent Act, 1970 provides for a process
which has not been followed in the instant case. Thus, hampering the core principles of
federalism and amounting to judicial overreach. The question of fact must not be dealt by
Supreme Court. Further, the computer implemented technology should be granted patent since
it is in compliance with all the essential ingredients of a patent vis-à-vis novelty, non-obvious
step and has industrial utility.
~ISSUE III~
WHETHER RVV& RHINE VALLEY HAVE VIOLATED SECTION 3 OF THE COMPETITION ACT?
It is humbly submitted before the Hon’ble court that the appellants have not violated section 3
of the competition act because there is neither any restriction created by appellants in the

course of business of any party nor control over their trade. Hence, there is no violation of
section 3(4). Also, RVV has not performed any refusal to deal to the respondent as there was
no prohibition or restriction with respect to their trade was imposed. Further there is no net
AAEC caused to the market & the agreement was in regard with the intellectual property of
Mr. Chef & his team of data scientists, therefore the agreement falls under the exception of
section 3(5) of the competition act.
~ISSUE IV~
WHETHER RVV& RHINE VALLEY HAVE VIOLATED SECTION 4 OF THE COMPETITION ACT?
It is humbly submitted before this Hon’ble court that the conduct of RVV has not abused its
dominant position u/s 4(2)(e) as there is neither a favourable treatment provided to Rhine
valley, nor the markets are associated. Further appellants were under no obligation to provide
data to Swadeshi Tech, apart from what they contracted for, as the data-in-question does not
amount to essential facility.
~ISSUE V~
WHETHER RVV HAS VIOLATED PRIVACY OF THE CITIZENS OF INDRAHAAR?
It is humbly submitted before the Hon’ble court that privacy and data security concerns are not
regulated by Competition act & there is no legislation in place in Indrahaar governing the
same. Also, there has been no violation of Information Technology (reasonable security
practices & procedure & sensitive personal data or information) rules, 2011.

ARGUMENTS ADVANCED
ISSUE I: WHETHER CCI HAS ERRED IN HOLDING THE JURISDICTION OVER
THE MATTER?
¶I.1. It is humbly submitted before the Hon’ble Court that in the present matter, the issue of
jurisdiction is concerned only with Rhine Valley & RVV, therefore, CCI has been made as a
pro-forma party for this particular issue in the case i.e. it stands deleted from the array of
parties1 and the decision of this Hon’ble Court will be binding on the proforma party.2
¶I.2. It is humbly brought to the notice of this Hon’ble Court that when CCI first took the
cognizance of the present case the order was pronounced in favour of the appellants albeit they
contended before the CCI that it had no jurisdiction. Rhine Valley and RVV as a company is
dedicated towards the consumers and respects the laws of Indrahaar.
¶I.3. Therefore, although the decision was in favour of the appellants but the appellants are still
contending the same i.e. CCI did not have any jurisdiction over the matter. The main reason for
this being that appellants in the interest of justice, do not want that a wrong precedent for
jurisdiction is set out for the future of competition law of Indrahaar.
[A] INFORMATION DOES NOT COME IN GOODS AND SERVICES UNDER THE
AMBIT OF COMPETITION ACT, 2002.
¶I.4. It is submitted before this Hon’ble Court that the allegation raised by respondent is
concerned with violations of § 3 and § 4 of Competition Act, 2002. The essential ingredient
however for a matter to fall under the purview of the said sections is that there should be a
1
Punjab Urban Planning and Development Authority v. Mandeep Singh, (2016) 7 SCC 571.
2
Kamlesh Kohli & Others v. Escotrack Finance, (2000) 1 SCC 324.

‘good’ or ‘service’ in respect of which competition is violated and information is not a good or
service.
[A.1] INFORMATION IS NOT A GOOD.
¶I.5. As per § 2(7)3 of sales of goods act, 1930, “goods” means every kind of movable property
other than actionable claims and money. In the case of Boardman v Phipps, it was held that
information is not a property at all.4 In addition to this, information in the databank of RVV is
confidential in nature5 and confidential information by no means can be regarded as property.6
¶I.6. Further, sin qua non for anything to fall under the ambit of ‘goods’ is that it has to be a
movable property. But, in the present factual matrix, the information which is concerned is
prima facie not a property.7 Therefore, it is evidently clear that information does not fall under
the ambit of goods.
[A.2] INFORMATION IS NOT A SERVICE.
¶I.7. Information in databank does not come under the ambit of service as defined in § 2(u)8 of
Competition Act, 2002. The phrase used in this section is “conveying of news or information”.
The term information here has to be read in accordance with the word news and not separately.
In the case of J. Jaylalitha v. Union of India9, it was made clear that the alternatives joined by
‘or’ need not always be mutually exclusive. Further, ‘or’ can be read as ‘and’ to give effect to
3
§ 2(7) Sales of Goods Act, 1930, No. 13, Acts of Parliament, 1930.
4
Boardman v. Philipps [1967] 2 AC 46.
5
¶ 6, Moot Proposition, 4th Annual Jindal Moot Court Competition, 2019.
6
Force India F1 Team Ltd v. Malaysia Racing Team SDN BHD [2012] RPC 29 [378].
7
Stephen John Coogan v. News Group Newspapers Ltd., 392 ALL ER 74 (2012 Court of Appeal).
8
§2 Competition act, 2002, No 12, Acts of Parliament, 2002.
9
J. Jaylalitha v. Union of India, (1999) 5 SCC 138.

“the clear intention of the legislature as expressed in the Act read as whole”.10 By applying the
rule of construction – ‘noscitur a sociis’ in the present matter, ‘information’ has to be read with
the preceding word ‘news’. The meaning of a word is to be judged by the company it keeps.11
It is a legitimate rule of construction to construe words in an Act of Parliament with reference
to words found in immediate connection with them.12 This rule according to Maxwell13, means
that when two or more words which are susceptible of analogous meaning are coupled
together, they are understood to be used in the cognate sense.
¶I.8. Thereby, it is evidently clear that the information referred to in this section14 is not used in
the sense of database information but in the sense of news information. Thus, the matter does
not come under the ambit of ‘goods’ or ‘services.’ Therefore, allegations by Swadeshi Tech for
violation of § 3 and 4 of competition act, 2002 stand on no footing.
[B]THERE DOES NOT EXIST A PRIMA FACIE CASE.
¶I.9. A “serious question” is considered to be any question which is not “frivolous or
vexatious”.15 A proceeding is said to be frivolous or vexatious when the party bringing it is not
acting bona fide.16 Swadeshi Tech in the present case is trying to get undue advantage of the
appellant’s technology and suing the appellant with a mala-fide intention so that the appellant
suffers heavy losses because of strict monetary fines of competition law which in turn would
ultimately lead to market dominance of Swadeshi Tech.
10
State of Bombay v. RMD Chamarbaugwala, AIR 1957 SC 669.
11
Rohit Pulp & Paper Mills Ltd. v. Collector of Central Excise, (1991) AIR 754,761 SC.
12
Angus Robertson v. George Day, 5 AC 63, 69 (1879); Ahmedabad Pvt. Primary Teachers Association v.
Administrative Officer, (2004) 1 SCC 755.
13
MAXWELLL, INTERPRETATION OF STATUTES, 79 (11th ed, 1962).
14
§ 2(u) supra note 8.
15
American Cyanamid v. Ethicon Ltd, 2 WLR 316, 323 (1975).
16
Bryan A. Garner, Black’s Law Dictionary 170 (9thed. 2009).

¶I.10. If a particular act seems to be anti-competitive, only thereafter the CCI gets jurisdiction
to go into the question of such anti-competitive practice.17 Competition Act itself is not
sufficient to decide and deal with the issues, arising out of the provisions of the CPC. Also, in
the case of Deutsche Telekom v. European Commission18, it was held that it is only if the
legislative framework eliminates the possibility of competition, then the jurisdiction of
Commission would be excluded.
[C]ALTERNATE REMEDIESARE NOT EXHAUSTED.
¶I.11. Having established the fact that the information in the present case is not a good or
service under the ambit of competition act, 200219, it would be arbitrary and irrational to still
consider such matter in CCI’s scope because it is not a competent body to deal in this regard.
¶I.12. Having established the fact that CCI does not have jurisdiction over this particular case,
it is evidently clear that maxim ‘forum non-convenience’ is applicable in the present case. Any
issue which may arise is only of data privacy which is dealt under IT Act, 2000.20
¶I.13. It is evidently clear that if the lowest body from the case began and appeals arose, if that
judicial body is not having any relevant jurisdiction, then all the subsequent appeals in higher
courts are invalid. Thereby, in the present case, if CCI is not having the jurisdiction of
particular matter, then the subsequent appeals of NCLAT and Supreme Court should not be
entertained and be dismissed straight away.
17
CCI v. Bharti Airtel Ltd. & Ors., 2018 SCC Online SC 2678.
18
Deutsche Telekom v. European Commission C-280/08 P, Judgment dated 14.10.2010.
19
Supra note 8.
20
Information Technology Act, 2000, No. 27, Acts of Parliament, 2000.

[C.1] MOST APPROPRIATE FORUM.
¶I.14. Since, it is already established that any breach of Information Technology Act, 2000 is
not governed by CCI21, therefore, any allegation pertaining to the aforesaid act, should be dealt
under §46 of the IT act by an adjudicating officer and is not a matter of concern for CCI.
¶1.15. Moreover, CCI has accepted that if there is a code governing a particular matter, then
that particular matter should be dealt in accordance with the provision of that code and not
according to the Competition Act.22
ISSUE II: WHETHER PATENT SHOULD BE GRANTED TO RVV?
¶II.1. It is contended before this Hon’ble Court that Supreme Court cannot flout the process
established by the legislature otherwise it would amount to judicial overreach. In addition,
computer implemented technology of RVV qualifies all the essentials of patent vis-à-vis
invention is a patentable subject matter, novel, inventive step and has industrial utility.23
[A] JUDICIAL OVERREACH BY THE SUPREME COURT.
¶II.2. It is humbly submitted before this Hon’ble Court, that if a statute provides for a specific
provision than that provision has to be followed instead of any other intervention by any
authority.24 In the instant case, the Patents Act, 197025 has provided for a specific hierarchy
with due process to register a patent. Therefore, the courts cannot be inconsistent with
substantial provision of the relevant statutory law.26
21
Vinod Kumar Gupta v. Whatsapp Inc., (2017) 82 taxmann.com 272 (CCI).
22
CCI v. Bharti Airtel Ltd., (2019) 2 SCC 521.
23
Bombay Agarwal co. v. Ramchand Diwanchand, AIR 1953 Nag 154.
24
Delhi Jal Board v. National Campaign for Rights of Sewerage Workers (2011) 8 SCC 568.
25
§ 73, The Patents Act, 1970, NO. 39, Acts of Parliament,1970.
26
Prem Chand v. Excise Commissioner of U.P, AIR 1963 SC 996.

¶II.3. Moreover, any disputed question of fact cannot be adjudicated by the Supreme Court.27
In the instant matter, there is a question of fact i.e. whether the application of RVV qualifies for
the grant of patent and the algorithm which per se is not patentable if combined with hardware
can be patentable. This is a substantial question of fact which also requires technical expertise
in the subject matter.
¶II.4. In fact, granting patents on the merits of matter is a highly technical field which requires
the domain specific officers for that particular matter. Thus, legislature intended to provide for
patent controller who has the specialized knowledge of subject. And, question of fact is
decided by controller which shall be binding on the higher courts.28 Therefore, Supreme Court
has no jurisdiction over the matter and it will be a clear case of judicial overreach if the Ld.
Apex Court decides on the question of fact.
[B] COMPUTER IMPLEMENTED TECHNOLOGY BY RVV IS A PATENTABLE
SUBJECT MATTER.
¶II.5. It is submitted that as per § 3(k) of patent act, 197029, computer program or algorithm
per se is not an invention and thus not patentable. Now, according to black’s law dictionary30,
per se means ‘by itself’. This means that software alone is not allowed to get a patent but its
combination with a hardware may be patentable31 which depends upon facts and circumstances
of each case.32
27
ABL International Ltd. v. Export Credit Guarantee Corporation, (2011) 3 SCC 553.
28
The State of U.P & Another v. Johri Mal, (2004) 4 SCC 714.
29
§3(k), supra note 25.
30
Bryan A. Garner, Black’s Law Dictionary 170 (9thed. 2009).
31
Report of the Joint Committee presented to the Rajya Sabha on 19th December, 2001.
32
Lantana Limited v. Comptroller General of Patents, [2014] EWCA Civil 1463.

¶II.6. Now, in the present case, the technology developed by RVV is a combination of a
computing platform i.e. a hardware along with an algorithm i.e. software.33 Thus, it is not
software alone for which patent is being asked for but the technology which includes both
software and hardware. The rationale is that a technical process carried out under the control of
a computer program, is not be a claim to a computer program as such, but to the whole process
which is patentable.34
¶II.7. Moreover, the decisive factor for patentability of software is “what technical contribution
the invention as a whole makes to the known art.35” In the present case, the computer
implemented technology of RVV is the only unique technology which can feed information on
a continuous basis and can create a constantly expanding framework for holding data and
information. Thus, it is eligible for patent protection.36
[C] COMPUTER IMPLEMENTED TECHNOLOGY OF RVV IS NOVEL.
¶II.8. Novelty is an essential feature on which patentability of an invention depends.37
According to Black’s law dictionary, novelty means ‘the newness of the information that is
generally unused or unknown and that gives its owner a competitive advantage in a business
field.
¶II.9. In the present case, albeit a patent has already been granted to the technology in Europe,
the present invention still falls under the novelty requirement because the computer
implemented technology in the present factual matrix is dynamic in nature and continuously
evolving. Machine learning provides algorithms that learn from data and create foresights
based on that data. There has been a substantial and continuous change in the algorithmic
33
34
Vicom/Computer related invention (Decision T 208/84) [1987] 2 EPOBA 74.
35
In Re, Koch and Sterzel, 1988 EPOR 72.
36
IBM/Computer programs II, (Decision T 935/97) [1999] RPC 861.
37
Lallubhai Jariwala v. Chimanlal and Co., 1935 SCC Online Bom 20.

technology which adds efficacy to the technology thereby indicating that the novelty
requirement is being fulfilled.
¶II.10. Also, it has been accepted by Indian Patent Office in Novartis Imatinib’s case38 that if
there is an already existing patent on a particular invention, and a substantial result comes out
of the patented invention which in itself qualifies for patentable subject matter and is new, then
it can also be granted patent.
[D]COMPUTER IMPLEMENTED TECHNOLOGY- RVV’S INVENTIVE STEP.
¶II.11. Inventive step is yet another sin qua non for a patent to be granted.39 In the present
matter, before the development of the computer implemented technology, database of
information was maintained manually which was cumbersome and required a lot of labour. It
was impossible to manually feed all the large amount of customer information.40 Now, due to
the combined efforts of Mr. Leon Chef along with his team of computer engineers and data
scientist made it possible to dynamically update vast amounts of customer data in the database.
It is submitted that it would not have been obvious to a person having ordinary skill in the art
¶II.12. This was a breakthrough invention which changed the whole perspective of cloud
infrastructure services and was non-obvious in nature.41
38
Novartis AG v. Mehar Pharma & Ors, 2004 SCC Online Bom 1063.
39
Bishwanath Prakash Radhey Sham v. Hindustan Metal Industries, (1979) 2 SCC 511.
40
41
Novartis AG v. Union of India & Others, (2013) 6 SCC 1.

[E] INDUSTRIAL APPLICABILITY OF THE COMPUTER IMPLEMENTED
TECHNOLOGY.
¶II.13. Since, it is necessary for a patent to be of an industrial application 42, it is an essential
feature which should be always taken into consideration.43 In the present factual matrix, the
computer implemented technology of RVV is a useful invention for the industry of Cloud
Infrastructure Services.44 The dynamic technology received information on a continuous basis
so as to create a constantly expanding framework for holding data and information45 and is a
very important tool to the enterprise.46
¶II.14. As Mr. Chef realized that it would be impossible to manually feed customer
information, the enterprise urgently needed a technological solution47 and thus, the computer
implemented technology served a useful purpose.48 Therefore, the computer implemented
technology should be granted a patent.
42
Supra note 38.
43
MB Rao & Manjula Guru, Patent Law in India (ed.2010, Kluwer Law International).
44
Monsanto Technology LLC v. Nuziveedu Seeds Ltd., 2019 SCC Online SC 25.
45
46
Council for scientific & Industrial research v. Hindustan lever Ltd., 2015 SCC Online IPAB 107.
47
48
LJ Mullard v. Philip Co., (1953) 52 RPC 287.

ISSUE III - WHETHER RVV & RHINE VALLEY HAVE VIOLATED SECTION 3 OF
THE COMPETITION ACT?
¶III.1. It is contended before the Hon’ble court that the appellants have not violated § 3 of the
competition act because there is no restriction created by appellants for any party, there is no
AAEC to the market & the agreement was in regard with the intellectual property of RVV.
[A] RVV’S AGREEMENT AS IN EXEMPTION UNDER SECTION 3(5).
¶III.2. It is humbly submitted that databases are an important tool for businesses, allowing
them to run smoothly.49 There is nothing inherently anti-competitive about proprietary
databases; indeed, companies normally do have proprietary datasets on their own products and
services.50
[A.1] DATABASE OF RVV IS COPYRIGHTABLE.
¶III.3. In the present case, Mr. Chef along with a team of computer engineers and data scientist
developed a technology that maintains information in a database.51 RVV invested a
considerable amount of time, and labour in developing this kind of software technology.52
Therefore, the data which is accrued out of this software technology is copyrightable as
compilation of addresses developed by devoting time, money, labour and skill amounts to a
literary work in which the author has a copyright.53
49
Tata Teleservices Ltd. v. BSNL Ltd.& Others, (2008) 10 SCC 556.
50
Jay Modrall, Big data and algorithms: Focussing the discussion, Oxford University (Jan 15, 2018),
https://www.law.ox.ac.uk/business-law-blog/blog/2018/01/big-data-and-algorithms-focusing-discussion.
51
52
53
Burlington Home Shopping Pvt. Ltd. v. RajnishChibber, (1995) 6 DLT61.

¶III.4. Furthermore, the Copyright Act, 1957 protects intellectual property rights in literary,
dramatic, musical, artistic and cinematographic works. The term “literary work” includes
computer compilations and databases as well.54Thus, the database which RVV has is well
within the bounds of Copyright Act, 1970 as is evident from the case which concerned
compilation of data of a law firm; it was held that although the amount of originality in a
compilation is small, it is still protected by law.55
¶III.5. Further, Delhi HC in one its judgement recognized protection of databases under
copyright law.56Also, according to doctrine of minimum modicum of creativity57, even if any
information is in public sphere but includes a certain level of creativity, then in that case
though the individual data is not protected58, compilation as a whole is copyrightable as there is
some amount of creativity in it.
[A.2] REASONABLE CONDITIONS IMPOSED IN THE DISPUTED AGREEMENT.
¶III.6. Having established the fact that customer list stored on a computer is recognized as a
protectable compilation under copyright act, 195759, it is evidently clear that Mr. Leon Chef
and his team of data scientists have a right to protect their property from being exploited
illegally in the market.60 It is contended that since database falls under the exception of §
54
§ 2(o) Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
55
Govindan v. Gopalakrishna, (1955) AIR391 (Mad.).
56
Tech Plus media Pvt. Ltd. v. Jyotijanda & Ors., 2014 SCC OnLine Del 1819.
57
Eastern Book Company v. D.B Modak, (2008) 1 SCC 1.
58
Copyright Act of 1976 § 103(b), 17 U.S.C.
59
Diljeet Titus v. Alfred A. Adebare, (2006) 130 DLT 330.
60
K. Sera Sera digital India Ltd. v. Pen India Ltd., [2017] 83 taxmann.com 11(CCI).

3(5)(i)(a)61 of the act, it is the right of the copyright holder that they can impose conditions in
order to protect their right.62
¶III.7. Since, copyright holder has a right to use his database in manner as he may deem fit63,
he is at liberty to protect the rights conferred.64 In the present matter, the terms of the contract
were negotiated and full access to the databank was not granted to swadeshi-tech because
respondents did not want their proprietary database to be out of their control.
[B] NO ACTION OF RVV & RHINE VALLEY SHOWCASES AN ANTI-
COMPETITIVE CONDUCT.
¶III.8. It is humbly submitted before the Hon’ble court that the respondents have not violated
section 3 of the competition act because there has been no restriction created by RVV or Rhine
Valley to swadeshi-Tech in their business.
[B.1] NO EXCLUSIVE SUPPLY AGREEMENT BETWEEN RVV & RHINE VALLEY OR ANY
OTHER MNC.
¶III.9. The sine qua non for attracting a liability u/s 3(4) explanation (b) of the competition
act65 is that there should be restriction created by the agreement to the purchaser.66 In the
present case, RVV agreed to provide data to swadeshi-tech on contractual basis.67 There has
61
§3, supra note 8.
62
Nandu Ahuja v. Competition Commission of India, [2014] 42 taxmann.com 487 (CAT).
63
FICCI Multiplex Association of India Federation House v. United Producers/Distributors Forum, 2011 SCC
Online CCI 33.
64
Indiacan Education ltd. v. Aldine ventures Ltd, [2016] 76 taxmann.com 140 (CCI).
65
§3, supra note 8.
66
Keerthy Krishanan v. Bharat Petroleum Corp. Ltd, (BPCL) Mumbai 2013 SCC Online CCI 27.
67

been no such condition imposed68 by RVV in its agreement for providing cloud infrastructure
services. Any of the multinational technology company including Rhine Valley or Swadeshi-
tech was not compelled to perform or omit to perform any task in their regular course of
business.69
[B.2] NO EXCLUSIVE DISTRIBUTION AGREEMENT BETWEEN RVV & RHINE VALLEY
OR ANY OTHER MNC.
¶III.10. The condition which makes “exclusive distribution agreement70” to fall under the
ambit of anti-competitive practices is that there should be restriction regarding to the supply of
the goods.71 In the present factual matrix, RVV is providing cloud infrastructure service to the
companies and is just compiling the data of multinational technology companies in form of a
database.72 RVV does not have any control regarding to the goods of any company including
Rhine valley as well.73
[B.3]NO REFUSAL TO DEAL BY RVV TO SWADESHI-TECH.
¶III.11. As per the explanation of ‘Refusal to deal’ u/s 3(4) explanation (d) of the competition
act74, it is clearly evident that a prima facie restriction should be created for the enterprise to
68
Vishal Pande v. Honda Motorcycles & Scooters India Pvt. Ltd., Haryana [2018] 92 taxmann.com 59 (CCI).
69
JHS laboratories Ltd. v. Procter & Gamble Home Products Ltd, [2014] 41 taxmann.com 363 (CCI).
70
§3, supra note 8.
71
NK Natural Foods Pvt. Ltd. v. Akshya Pvt. Ltd, [2014] 44 taxmann.com 216 (CCI).
72
73
Dilip Modwil v. Insurance Regulatory & Development Authority, [2014] 51 taxmann.com 308 (CCI).
74
§3, supra note 8.

whom goods are sold or from whom goods are brought.75 In the present case, the evidences are
not enough to show that a limit of choice has been created.76
¶III.12. It is essential for a case to build under refusal to deal, that the agreement shall prohibit
the enterprise in some manner77 or a problem is created in their regular course of business.78 It
is clearly evident from the facts there is no requirement or restriction imposed79 to Swadeshi-
tech and no entry barriers were created80 by the agreement because the agreement was for
providing customer information81 and no term or condition creating restriction to deal was
imposed by the agreement.82
[C] NO APPRECIABLE ADVERSE EFFECT ON COMPETITION.
¶III.13. It is submitted before this Hon’ble court that any vertical agreement is only in
contravention of section 3(1) only if they cause or likely to cause an AAEC effect 83& they
cannot be per se assumed to be illegal.84 In the present matter, no action of RVV has restricted
the market85 or distribution of Swadeshi-tech.86 Further, there is an absence of evidence to
75
Shamsher kataria v. Honda Siel Cars India Ltd., [2015] 59 taxmann.com 419 (CCI).
76
Ghanshyam DaasVij v. Bajaj Corp. Ltd., [2016] 68 taxmann.com 63 (CCI).
77
Id.
78
Alkem Laboratories v. CCI, [2016] 70 taxmann.com 48 (CAT).
79
Supra note 68.
80
Supra note 76.
81
82
Cupid Ltd. v. Ministry of Health& Family Welfare, Government of India, [2019] 101 taxmann.com 369 (CCI).
83
Supra note 75.
84
Mohit Manglani v. Flipkart India Pvt. Ltd., [2015] 57 taxmann.com 57 (CCI).; National Society of Professional
Engineers vs. United States, 435 US 679 (1978).
85
Counfreedise v. Times Group India Ltd., [2018] 97 taxmann.com 290 (CCI).
86
G. Krishna Moorty v. Karnataka Films Chamber of Commerce, [2018] 97 taxmann.com 419 (CCI).

show that not providing other than contact details restricted the market of Swadeshi-tech, but,
since contact information is provided to the enterprise, their market reach is increased.87 Hence,
there is no AAEC in the market.
ISSUE IV – WHETHER RVV & RHINE VALLEY HAVE VIOLATED SECTION 4 OF
THE COMPETITION ACT?
¶IV.1. The counsel humbly pleads before this Hon’ble court that the conduct of RVV & Rhine
Valley is not an abuse of dominant position u/s 4 of the competition act because § 4(2)(e) is not
attracted and personal data is not an essential facility.
[A] NON-APPLICABILITY OF SECTION 4(2)(E) OF THE COMPETITION
ACT.
¶IV.2. Section 4(2)(e) of the competition act88 says that, “ There shall be an abuse of dominant
position [under sub-section (1), if an enterprise or a group]- Uses its dominant position in one
relevant market to enter into, or protect, other relevant market.89 It is contended that there is no
applicability of the particular section in the present case because firstly there is no favourable
treatment90 by RVV for Rhine Valley to protect their position in the market of OMP and
secondly the two relevant markets are not associated.91
87
Sudeep PMV v. Kerala Chemist & druggist Association, [2017] 87 taxmann.com 234 (CCI).
88
§ 4(2) (e), supra note 8.
89
CCI v. Fast Way Transmission Pvt. Ltd., (2018) 4 SCC 316.
90
Schott Glass India Pvt Ltd v. CCI, [2014] 45 taxmann.com 157 (CAT).
91
XYZ v. REC Power Distribution, 2015 SCC Online CCI 8.

[A.1] RELEVANT MARKETS OF RVV & RHINE VALLEY.
¶IV.3. It is humbly submitted that the pivotal inquiry in case of alleged abuse of dominance is
whether the opposite party is in a dominant position in the relevant market or not.92 Therefore,
assessment of dominance is to be preceded by delineation of the correct relevant market in
which dominance of the enterprise under consideration is to be assessed. 93 Therefore,
identifying the relevant market for the instant case serves a great purpose.
¶IV.4. The Relevant product/service market u/s 2(t) of the competition act 94 is defined as a
market comprising all those products or services which are regarded as interchangeable or
substitutable by the consumer95, by reason of characteristics of the products or service, their
prices and intended use.96 Now, to determine relevant market, SSNIP test97is used to examine
the degree to which consumer may shift to purchase product in response to a small but
permanent increase in price.98 In the present factual matrix, the relevant market of Rhine valley
is OMP having a competition with swadeshi-tech. Also, the relevant market is determined from
the point of view of a consumer99, therefore relevant product market of Rhine Valley would be
OMP only.
92
Pankaj Agarwal v. DLF Gurgoan Home Developers Pvt. Ltd, 2015 Comp LR 728 (CCI).
93
GKB Hi Tech Lenses Pvt. Ltd. v. Transition Optical India Pvt. Ltd., Case No. 55/2012 (CCI).
94
§2(t), supra note 8.
95
Om Dutt Sharma v. Competition Commission of India., 2015 Comp LR 529 (Comp AT).
96
Jindal Steel & Power Ltd. v. Steel Authority of India Ltd, (2012) 107 CLA 278 (CCI).
97
Ess Cee Securities Pvt. Ltd. v. Competition Commission of India, [2017] 77 taxmann.com 89 (CAT).
98
Dr. Heeranandani Hospital v. CCI, [2015] 65 taxmann.com 65.
99
M/S Maharastra State Power Generation Co. Ltd. v M/s. Mahanadi Coalfields Ltd, 2013 Comp LR 910 (CCI).

¶IV.5. Further, relevant product market is classified on the basis of intended use 100 and it
would be completely different in case of Rhine Valley & RVV because the intended use of
Rhine Valley would be OMP but the intended use of RVV would be Cloud Infrastructure
Services101 and it is possible for different services to have different relevant product markets
even if they are from same enterprises.102
[A.2] NO FAVOURABLE TREATMENT BY RVV TO RHINE VALLEY.
¶IV.6. Firstly, there should be a demonstrated ‘use’ of the alleged dominant position 103& the
circumstantial evidence must amount to satisfy the requirements of leveraging.104 The
requirements are not fulfilled in the present factual matrix because providing of database to
Rhine Valley was a part of business policy of RVV and it was a regular course of action with
other companies also. In the present matter, the information kept in the databank of RVV was
although confidential, but it was provided to those companies which contributed to the
database105 i.e. it was provided to all the companies which relied upon the cloud computing
technology of RVV.
¶IV.7. There has to be a special conduct or action by the alleged enterprise in the secondary
market106 or a favourable conduct for the associate/subsidiary company.107 As already
100
Saint Gobain Glass India Ltd. v. Gujrat Gas Company Ltd., 2015 Comp LR 431 (CCI).
101
102
Supra note 75.
103
India Trade Promotion Organization, Pragatibhavan, New Delhi v. CCI & Ors, 2016 SCC Online Comp AT
452.
104
Supra note 91.
105
106
Pan India Infra Projects Pvt. Ltd. v. CCI, [2015] 57 taxmann.com 388 (CAT).
107
Supra note 91.

established that providing data to Rhine Valley was a regular course of action, hence it does
not violate section 4(2) (e).108
¶IV.8. Moreover, it is essential for the applicability of § 4(2)(e) that there has to be significant
‘use’ of the dominant position109 which means there has to be a specific action or omission in
favour of the enterprise in secondary market110 which is clearly not observed in the present
case. Also, RVV has not rejected any enterprise for the services which they offered to Rhine
valley111. Therefore, the allegation suffers from a lack of concrete mechanism showing how
RVV could leverage its position in OMP market.112
[A.3] MARKETS OF RVV & RHINE VALLEY ARE NOT ASSOCIATED.
¶IV.9. When a market can affect the competition in another market, such markets are called as
associated markets.113 There has to be distinct but associated markets for applicability of
section 4 (2)(e).114 In the present matter, market of RVV is cloud infrastructure service & the
market of Rhine Valley is OMP. The allegation on RVV that it has leveraged its position is
frivolous because there does not exist any close associational link. Moreover, there is no
specific circumstance which would justify the leverage claim.115
108
Bharti Airtel Ltd. v. Reliance Industries Ltd., [2017] 82 taxmann.com 43(CCI).
109
Shri v. Ramchandra Reddy & Ors. v. HDFC bank & Ors, (2011) CCI 28.
110
Supra note 108.
111
Supra note 91.
112
Financial Software & Systems Pvt. Ltd. v. M/S ACI &ors., Case 52/2013, (CCI).
113
United States Football League v. National Football league, 842 F.2d 1335 (1988).
114
MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd, [2011] 13 taxmann.com 110 (CCI).
115
Tetra Pak International SA v. Commission, (1996) ECR I-595.

¶IV.10. For leveraging the position in the secondary market, there should be a prima facie
benefit & a hindrance to competition created in the secondary market116 which is clearly not
seen in the present matter. Also, there is no wrongful entrance in the secondary market 117 and
there is no compulsion or lack of options created by enterprise in the secondary market.118
Hence, RVV has not leveraged its position in the market of OMP 119 because there is no
discretion enjoyed by the dominant enterprise in the secondary market.120
[B] NO DENIAL TO MARKET ACCESS ON PART OF RVV.
¶IV.11. It is contended before the Hon’ble Supreme Court that respondents have not abused
their dominant position by not providing the personal data to Swadeshi-tech because they were
not under any obligation to provide the data.
[B.1] SPECIFIC PERFORMANCE OF THE CONTRACT IS FULLFILLED BY RVV.
¶IV.12. Parties to a contract are free to settle for any terms they please121, condition being that
they are legally acceptable. In the present case, the court can only enforce the terms which are
expressly mentioned in the contract122 because when Swadeshi-tech agreed to pay the
consideration of the contract, it amounts to consensus-ad-idem.
¶IV.13. The language of the contract between RVV and Swadeshi Tech explicitly stated that
RVV would be sharing “all the relevant contact details of its customer as available in its
databank including but not limited to telephone, email and physical delivery address”. It is
116
Just ticket Pvt. Ltd. v. Big Tree Entertainment Pvt. Ltd, [2017] 80 taxmann.com 19 (CCI).
117
Supra note 104.
118
Supra note 108.
119
Matrimony.com v. Google India Pvt. Ltd, (2018) CCI 1.
120
Turbo Aviation Pvt. Ltd. v. Bangalore International Airport Ltd, [2016] 66 taxmann.com 43 (CCI).
121
The State of Madras v. Ramalingam and Co., AIR 1956 Mad 695.
122
A E Farr Ltd. v. The Admiralty, [1953] 2 All ER 512; Gardiner v. Moore, [1969] 1 QB 55 734.

submitted that the contract explicitly says that RVV will be sharing ‘relevant contact details’
that means consensus ad idem of both the parties was in getting contact details of customer
only. Thereby, search history and personal preferences are by no means ‘relevant contact
details’ as one cannot form or accrue contact information out of it. Further, the clause stated,
“but not limited to….” is just a discretionary clause that RVV may provide more that the
information expressed on their own accord.
[B.2] PERSONAL DATA IS NOT AN ESSENTIAL FACILITY FOR SWADESHI-TECH.
¶IV.14. Any facility or infrastructure without access to which, competitor cannot provide
service to their customers123 can be regarded as an essential facility. It is contended that the
data which was not shared with Swadeshi-tech does not constitute an essential facility because
it does not hamper the ability of Swadeshi-tech to effectively compete with Rhine Valley.124
¶IV.15. Until the opportunity of competition is not restricted, there is no violation of the act.125
In the present case, Swadeshi-tech entered to the market of OMP in 2015 and had a market
share 35% by 2018.126 Also, Swadeshi-tech had a much more reliable delivery system in
Indrahaar127 which clearly shows that they were in a condition to give effective competition in
the market.
¶IV.16. Further, essential facility can be determined from that test that refusal to access to it
creates a monopoly for the holder128 as the word essential indicates that the person must have
123
Oscar Bronner GmbH & Co. Kg v. Media print Zeitung, (case c-7/97 [1999] 4 CMLR 112).
124
Supra note 75.
125
Hemant Sharma v. AICF, [2018] 96 taxmann.com 35 (CCI).
126
127
128
Arshiya Rail Infrastructure Limited (ARIL) v. Ministry of Railways, [2012] 27 taxmann.com 25 (CCI).

more than inconvenience or some economic loss.129 In the present factual matrix, no effect on
competition can be seen by the reason that RVV didn’t provided Swadeshi-Tech with the
information not mentioned in the contract.
¶IV.17. Moreover, it is also essential that there exists a denial to the competitor of such
facility130, but the negotiated contract provided them all the contact details which were
essential to increase their customer reach.131 Therefore, there is no denial of an essential facility
to Swadeshi-tech.
ISSUE V: WHETHER RVV HAS VIOLATED PRIVACY OF THE CITIZENS OF
INDRAHAAR?
¶V.1. It is humbly submitted before this Hon’ble Court that there is no privacy violation in the
present case because firstly there is no privacy related legislation in Indrahaar and secondly
RVV has complied with the data collection norms established under IT Act, 2000.
[A]THERE IS NO LAW REGULATING DATA PRIVACY OF CITIZENS OF
INDRAHAAR.
¶V.2. It is contended that violation of a law is possible only if prima facie there exist a law on
that subject matter. Currently, there is no law which regulates privacy related concerns of
citizens in Indrahaar. Therefore, there should be no case arising out of privacy and the claims
of CNI are frivolous & vexatious.
129
Twin Labs v. Weider Health & Fitness, 900 F.2d 566,570 (2d Cir. 1990).
130
MCI Communications Corp. v. AT&T., 7 FCC Rcd. 807 (1992).
131

[B] RVV HAS COMPLIED WITH THE NORMS OF IT RULES,2011.
¶V.3. It is humbly submitted that RVV as a corporate body is not ‘negligent’ in maintaining
reasonable security to protect data due to which any wrongful loss or gain is accrued. Thus,
RVV will also not fall under breach of IT Rules, 2011.
[B.1] RVV IS NOT NEGLIGENT IN MAINTAINING REASONABLE SECURITY FOR DATA
PROTECTION.
¶V.4. The information was kept highly confidential and RVV shared it only with those
companies which contributed to the database. In fact, it was this level of confidentiality that
when Swadeshi Tech approached the appellants for contact details of its user, they were not
even able to know the full capability of RVV’s cloud infrastructure services despite they were
going to make a contract because of data’s confidential nature which was maintained by RVV.
¶V.5. Not only this, Rhine Valley also provided for privacy policy132 regarding collection of its
customer data. Thus, they have reasonable security practices for maintenance of standards of
confidentiality of such data.133
[B.2] RVV THROUGH RHINE VALLEY HAD TAKEN PRIOR CONSENT
¶V.6. It is submitted that IT Rules, 2011 work only on sensitive personal data.134 In the present
case, only bank details are sensitive for which Rhine Valley has given the discretion of
consent135 to its users.136 This is also in compliance with rule 5(1)137 of the IT (reasonable
security practices and procedures and sensitive personal data or information) Rules, 2011.
132
Rule 4, Information Technology (Reasonable Security Practices & Procedures & sensitive Personal Data or
Information) Rules, 2011.
133
Rule 8, Id.
134
Rule 3, Id.
135
Rule 5(7), Id.

¶V.7.Further, Consent has been viewed as an expression of a person’s autonomy or control,
which has the consequence of allowing another person to legally disclaim liability for acts
which have been consented to.138 In the double click139case, it was held by the court that use of
database to analyse sensitive information of net surfers and browsing preference without
consent amounted to invasion of privacy. But, in the present case, appellants had taken consent
from the users.
¶V.8. Furthermore, personal preferences of user which appellant in the present factual matrix
collected will not necessary infringe privacy of user but instead help the user in seamless
experience on internet. Having personal recommendations of users, it would help to provide for
good targeted ads which might be of certain use to users instead of random vague ads. For
instance, Netflix uses algorithms to personalise recommendations for its viewers, and also
curates its shows based on consumer preference data. Such use of data promotes customer
choice, thereby increasing consumer welfare.
136
Clarification No.16, 4th Annual Jindal Moot Court Competition, 2019.
137
Supra note 132.
138
John Kleinig, The Nature of Consent (Alan Wertheimer and Franklin Miller (eds.), Oxford University Press,
2009).
139
In Re DoubleClick Inc. Privacy Litigation, No. 00-0641, 2002 U.S. Dist. LEXIS 270999 (S.D.N.Y. 32rd May,
2002).

PRAYER
Wherefore, in the light of the facts presented, issues raised, argument advanced and
authorities cited, it is most humbly prayed before the Hon’ble Supreme Court of Indrahaar
that it may be pleased to adjudge and declare that:
1) CCI erred in holding the jurisdiction over the matter and the matter should be transferred
before the most appropriate authority.
2) The work of appellants is eligible to get patent protection.
3) Conduct of appellants does not amount to anti-competitive conduct and abuse of
dominance.
4) There is no violation of privacy and the contentions of respondent should be struck right
away.
5) The cost of proceedings should be borne by the respondent.
And/or pass any other order, direction or relief that it may deem fit in the best interest of
justice, equity and good conscience.
All of which is humbly and respectfully submitted.
Sd/-
(Counsel on behalf of Appellants)

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THE HONOURABLE SUPREME COURT OF INDRAHAAR

MEMORIAL ON BEHALF OF THE APPELLANTS

APPEAL FILED UNDER SECTION 53-T OF THE COMPETITION ACT, 2002

APPEAL NO. ____/2019

RHINE VALLEY CORPORATION…………………………………………….…APPELLANT 1

RHINE VALLEY VAULT SERVICES……………………………………………APPELLANT 2

SWADESHI TECHNOLOGY PVT. LTD……………………………………….... RESPONDENT 1

SLP NO. ____/2019

RHINE VALLEY CORPORATION…………………………………………….…APPELLANT 1

RHINE VALLEY VAULT SERVICES……………………………………………APPELLANT 2

CENTRE FOR NETIZENS OF INDRAHAAR……………………………………..RESPONDENT 2

▪ QUESTIONS PRESENTED ……………………………………………………………….…14

ISSUE II: WHETHER PATENT SHOULD BE GRANTED TO RVV? …………………………….…...21

[A]JUDICIAL OVERREACH BY SUPREME COURT………………………………………………..21

[B] COMPUTER IMPLEMENTED TECHNOLOGY BY RVV IS A PATENTABLE SUBJECT

[C]COMPUTER IMPLEMENTED TECHNOLOGY OF RVV IS NOVEL……………………………...23

[D] COMPUTER IMPLEMENTED TECHNOLOGY – RVV’s INVENTIVE STEP……………………...24

MEMORIAL ON BEHALF OF APPELLANTS

[E]INDUSTRIAL APPLICABILITY OF THE COMPUTER IMPLEMENTED TECHNOLOGY…………….25

[A]RVV’S AGREEMENT AS AN EXEMPTION UNDER SECTION 3(5) …………………………....26

[A] NO VIOLATION OF SECTION 4(2) (E) OF THE COMPETITION ACT………………………….31

[A]THERE IS NO LAW REGULATING DATA PRIVACY OF CITIZENS OF INDRAHAAR………….....37

MEMORIAL ON BEHALF OF APPELLANTS

[A] SUPREME COURT CASES

SR. NO. CASE LAW NAME PAGE

1. Punjab Urban Planning and Development Authority v. Mandeep Singh & 17

4. State of Bombay v. RMD Chamarbaugwala, (1957) AIR 699 SC. 19

8. Eastern Book Company v. D.B Modak, (2008) 1 SCC 1. 27

9. CCI v. Bharti Airtel ltd., (2019) 2 SCC 521. 21

10. Bishwanath Prakash Radhey Sham v. Hindustan Metal Industries, (1979) 24

[B] HIGH COURT CASES

1. Bombay Agarwal co. v. Ramchand Diwanchand, AIR 1953 Nag 154. 21

2. Lallubhai Chakubhai Jariwala v Chimanlal Chunilal and Co, 1935 SCC 23

MEMORIAL ON BEHALF OF APPELLANTS

4. Burlington Home Shopping Ltd, v. Rajnish Chibber, (1995) 6 DLT61. 26

5. Govindan v. Gopalakrishna, (1955) AIR391 (Mad.) (India). 26

[C] CCI, NCLAT & OTHER TRIBUNAL CASES

MEMORIAL ON BEHALF OF APPELLANTS

14. Alkem Laboratories v. CCI, [2016] 70 taxmann.com 48 (CAT). 29

MEMORIAL ON BEHALF OF APPELLANTS

[D] FOREIGN CASES

SR. NO. CASE LAW NAME PAGE

MEMORIAL ON BEHALF OF APPELLANTS

11. IBM/Computer Programs II, (Decision T 935/97) [1999] RPC 861. 23

1. Competition Act 2002, No 12, Acts of Parliament, 2002.

2. The Patents Act, 1970, NO. 39, Acts of Parliament, 1970.

3. Copyright Act, 1957, No. 14, Acts of Parliament, 1957(India).

4. Information Technology Act, 2000, No. 27, Acts of Parliament, 2000.

5. Information Technology (Reasonable Security Practices & Procedures & sensitive

6. Sales of Goods act, 1930, No. 13, Acts of Parliament, 1930.

MEMORIAL ON BEHALF OF APPELLANTS

[A] COMPETITION LAW

SR. NO. PARTICULARS

1. S.M DUGAR, GUIDE TO COMPETITION LAW (ed. 6, LEXIS NEXIS).

4. VERSHAVAHINI, INDIAN COMPETITION LAW, (ed. 2016, LEXIS NEXIS).

6. D.P MITTAL, COMPETITION LAW & PRACTICE (ed. 3, TAXMANN).

[B] INTELLECTUAL PROPERTY RIGHTS

SR. NO. PARTICULARS.

1. JAI SHRI WATAL, IP RIGHTS (ed. 2012, OXFORD UNIVERSITY PRESS).

2. ELIZABETH VERKEY, LAW OF PATENTS (ed. 2010, EASTERN BOOK COMPANY).

3. ANAND PADMANABHAN, INTELLECTUAL PROPERTY RIGHTS (ed. 2012, LEXIS NEXIS).

[C] CONSTITUTIONAL LAW & INTERPRETATION OF STATUTES

SR. NO. PARTICULARS.