For allegedly using the Emergency Recharge Card Service (ERCS) without the approval of the patent owner, four telecoms giants have been sued to the Federal High Court in Lagos.
They are MTN Nigeria Communication Limited; Airtel Networks Limited; Emerging Markets Telecommunications Services Limited (ETISALAT) and GLOBALCOM Limited.
The firms were sued before Justice Saliu Saidu by a company, Erosalem Global Limited, for allegedly disregarding the plaintiff’s right over its invention (ERCS) with Patent no: NG/P/2009/634 by integrating the service on their platforms and benefitting financially.
In a writ of summons marked FHC/L/CS/1694/14, the plaintiff is seeking an order of court compelling the telecom firms to account for all profits they made through the unlawful use, supply, sale and application of its ERCS invention.
The plaintiff wants the court to order the defendants to pay 50 percent of all the profits made from inception of the package as well as interest on the said sum at the rate of 21 percent till judgment is given, and 12 percent thereafter, till the entire sum is fully liquidated.
It is also seeking a perpetual injunction restraining the telecom firms and their agents from using, selling, applying, providing to their subscribers or anyone, the plaintiff’s ERCS, which involves the process and application of borrowing airtime to telephone prepaid subscribers either through the use of SMS, USSD code, printed recharge card, customer care or any other mode.
The plaintiff alleged that it invented the ERCS in 2008 and 2009, adding that it was the first to ever develop the concept.
It averred that the invention was patented in 2009, which was not prior to that time, part of the methods or applications of any telecommunication in Nigeria or the world over.
Hence, the plaintiff is praying the court to award N5 billion against MTN for alleged breach of confidence, as well as N25 billion jointly against the defendants for the unlawful use of its Patented right.
Stating its case, the plaintiff averred that after obtaining its Certificate of Patent (CofP), it sought a platform where the invention could become accessible to the public and through one Chibuzor Eronini (the inventor), approached MTN (first defendant) who invited it to a meeting held on March 12, 2010.
It claimed that the meeting held at MTN’s office with Eronini representing the plaintiff while one Lynda Saint-Nwafor, a senior management staff, represented MTN.
The plaintiff claimed that it gave a detailed presentation at the meeting and explained the workings of the ERCS to MTN, which was impressed and expressed serious interest in implementing the product on its platform as a telecom provider.
It stated that MTN then collected the written proposal of the product prepared by the plaintiff titled “Proposal for Emergency Recharge Service” (ERS), MTN, which was a confidential document and promised to get back to Erosalem Global with the intention of entering a partnership to sell the product to MTN subscribers.
The plaintiff averred that MTN deliberately refused to contact it on the way forward after obtaining its confidential information contained in the proposal and it eventually reached out to MTN on May 22, 2012, through email asking why the telecoms company failed to get back to it on the ERCS.
According to Erosalem Global, it got a surprising reply from MTN (Nwafor) which said: “Unfortunately, MTN has moved on and currently in the implementation phase of this solution. Do take care for now.”
The plaintiff further claimed that the ‘keep talking with MTN Xtra time’, currently being provided by the service provider was its ERCS invention.
It stated that while MTN started the unlawful use of Its patent in February last year, Airtel started it in February 2013, with Etisalat and Glo commencing their in March and May, last year.
Erosalem Global Limited claimed that its ERCS invention was being sold by the defendants in large scale to their millions of subscribers without its consent or approval.
It averred that the defendants’ actions have infringed on its proprietary right over the invention of the ERCS, noting that despite writing the defendants in August last year, to desist from the act and compensation it, they continued the willful infringement of its right.
Consequently, the plaintiff wants the court to declare that it is the bonafide owner and registered proprietor of ERCS and that MTN by unlawfully using a confidential information received from it on March 12, 2010, without its consent has breached its (MTN’s) duty of confidentiality.
But in its statement of defence, MTN denied the allegations, noting that the concept was not exclusive to the plaintiff.
It described as false, Erosalem Global’s claim to originality of the concept of airtime credit service or advance airtime service.
MTN alleged that as far as 2007, a British Virgin Island registered company, Urbis Telecom Corporation applied for and was granted patent over the idea of airtime credit advancement, and has sold the concept in various countries of the world and grants licences to other companies or organisations interested in making use of the idea.
MTN further contended that its Xtra time service was different from the plaintiff’s ERCS, noting that Erosalem Global’s Patent involved the purchase and use of emergency recharge card vouchers by a subscriber at a value lesser than the stated value of the recharge card.
It claimed that while the plaintiff’s patent involved the purchase and use of vouchers before a subscriber can enjoy the service, no such requirement was needed on its Xtra time service.
MTN further denied the alleged breach of confidence, stating that no confidential information was communicated by the plaintiff, describing it as false and speculative.
Praying the court to dismiss the suit and award substantial cost against the plaintiff, MTN described the suit as frivolous, speculative, gold digging, vexatious and a calculated attempt of exploitation.
Like MTN, Etisalat also claimed that the practice of airtime advancement has been in existence in other parts of the world with requisite intellectual property registration, prior to the grant of Patent right in 2009 to the plaintiff.
The matter has been adjourned to July 9, 2015.
