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5) While passing an order under Sub-s.(4) in respect of the ground mentioned in cl.(d) or cl.(e) of Sub-section STA |
2),the Controller shall not take into account any personal document or secret trial or secret use STA |
In case the Controller issues an order under Sub-s.(4) that the patent shall be maintained subject to amendment of the specification or any other document,the patent shall stand amended accordingly STA |
We also quote S.61 of the Patents (Amendment) Act,2005 which reads as under: "S.61.In Section 117A of the principal Act [as inserted by S.47 of the Patents (Amendment STA |
Act,2002,in STA |
Sub-section (2),for the words and figures "section 20,Section 25,Section 27,Section 28,",the words,figures and brackets "section 20,Sub-s.(4) of Section 25,Section 28" shall be substituted STA |
this section was not brought into force till 2.4.2007 STA |
In short,by the Patents (Amendment) Act,2005,for the first time a dichotomy was introduced in the Patent Law between "opposition to the pre-grant" and "opposition to the post-grant of patent".This was the major structural change in the Patent Law Ratio |
Similarly,under the Patents (Amendment) Act,2005,appeal was restricted to the post-grant opposition orders and that appeal lay before the Appellate Board and not to the High Court Ratio |
Here also,S.25 of the Patents Act,1970 as amended by Patents (Amendment) Act,2005 Ratio |
which refers to "pre-grant opposition" and "post-grant opposition") was brought into force on and from 1.1.2005 whereas amended Section 117A by which appeal was provided for against post-grant opposition order was not brought into force till 2.4.2007.One more aspect needs to be mentioned Ratio |
As stated,vide Patents (Amendment Ratio |
Act,2005,a dichotomy was brought in between pre-grant and post-grant opposition orders Ratio |
w.e.f.1.1.2005.But when it came to filing of first appeal for some unknown reasons,the amended Section 117A (which provided for only one statutory appeal and that too against post-grant orders passed by the Controller) was not brought into force Ratio |
The result is that although the Legislature intended to provide for only one statutory appeal to the Appellate Board,by reason of S.61 of the Patents (Amendment) Act,2005 not being brought into force till 2.4.07 a strange situation developed Ratio |
The Legislature intended to provide for only one statutory appeal to the Appellate Board but by not bringing S.61 into force till 2.4.07,appeals filed during the interregnum,as in this case,became vulnerable and liable to be dismissed as misconceived as is contended by the appellant Ratio |
This is the controversy which needs to be resolved in this case Ratio |
On 19.10.2006 when FAO No.293/06 was filed in the High Court,Chapter XIX of the parent Act as amended vide Patents (Amendment Ratio |
Act,1999 continued to be in operation notwithstanding the enactment of the Patents Ratio |
Amendment) Act,2002 and the Patents (Amendment Ratio |
Act,2005 as the amended Ss.116 and 117A were brought into force only vide Notification dated 2.4.07.One more point needs to be noted Ratio |
Section 117G of the principal Act was substituted vide Patents (Amendment) Act,2005.It reads as under: "Section 117G.Transfer of pending proceedings to Appellate Board.-All cases of appeals against any order or decision of the Controller and all cases pertaining to revocation of patent other than on a counter-claim in... |
On reading amended Section 117G it becomes clear that all appeals against any order or decision of the Controller had to be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette Ratio |
This amended Section 117G was also brought into force vide Notification dated 3.4.2007.Under Notes on Clauses attached to the Statement of Objects and Reasons,it has been clarified,vide cl.62 Ratio |
that amended S.117 G is consequential to the enforcement of the jurisdiction of the Appellate Board u/s.64 which results to revocation of patent Ratio |
Vide cl.47 of Notes on Clauses attached to the Statement of Objects and Reasons,it has been clarified that S.64 is also amended vide Patents (Amendment) Act,2005 to confer wider jurisdiction on the Appellate Board in matters of revocation of patent,therefore,amended Section 117G which is brought into force only from 3.... |
The question which arises for determination in this batch of civil appeals is : whether FAO No.292/06 and FAO No.293/06 filed by respondent no.3 herein in the High Court were liable to be dismissed Ratio |
According to the appellant,with the change in S.25 brought about by Patents (Amendment) Act,2005,a dichotomy was introduced in the Patents Act,1970.According to the appellant,that dichotomy was between "pre-grant opposition" and "post-grant opposition Ratio |
According to the appellant,this was a structural change in the principal Act ARG |
According to the appellant,on 23.8.06 the Controller rejected its "pre-grant opposition" and on that day "post-grant opposition" avenue was open to respondent no.3 vide S.25(2).According to the appellant,under the amended S.25 on rejection of "pre-grant opposition" it was open to respondent ARG |
no.3 to move an application opposing grant of patent under S.25(2).The patent was granted to the appellant on 22.9.06.According to the appellant,it was open to respondent no.3 to challenge the grant of patent by making "post-grant opposition" under S.25(2) from which an appeal was maintainable to the Appellate Board AR... |
This was not done ARG |
Further,according to the appellant,"pre-grant opposition" was filed by respondent no.3 under S.25(1) on 21.3.05.According to the appellant,though the Patents (Amendment) Act,2005,amended S.25 by enacting the amendment on 4.4.05 the said amendment was brought into force w.e.f.1.1.2005 and,therefore,it was open to respon... |
On the other hand,on behalf of respondent no.3,it has been urged that on 19.10.06 it had filed an appeal in the High Court under unamended S.116 of the parent Act; that,even though S.25 stood restructured w.e.f.1.1.05 on account of absence of notification bringing the amended law into force,Ss.116 and 117A (as amended)... |
However,on that date appeal against pre-grant opposition order was maintainable,under Section 116,to the High Court and,therefore,there is no merit in the argument advanced on behalf of the appellant that the first appeal filed by respondent no.3 was misconceived; that,it is true that S.25 got restructured w.e.f.1.1.20... |
and lastly it was argued on behalf respondent no.3 that the appellant had filed its application for grant of patent on 14.6.2000,it was notified on 20.11.04,however,respondent no.3 had filed its "pre-grant opposition" under S.25(1) on 21.3.05 when the Patents (Amendment) Act,2005 was not promulgated (it was promulgated... |
As stated above,quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may,by notification in the Official Gazette,appoint Ratio |
At times provision is made for appointment of different dates for coming into force of different parts of the same Act Ratio |
An Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation Ratio |
Applying the above tests to the present case,we find that by Patents (Amendment) Act,2005 for the first time a dichotomy was inserted in the Patent Law by providing vide S.25(1) for "opposition to pre-grant" and vide S.25 (2) for "opposition to post-grant" of patent Ratio |
By reason of Patents (Amendment) Act,2005,the kind of opposition available under the said 1970 Act is different from what existed earlier Ratio |
Previously,there was no "post-grant opposition".Previously,the only provision of challenge by an interested party was a "pre-grant" challenge under S.25 (1) as it then stood Ratio |
Therefore,the Courts had evolved the 'rule of caution' as the patent had not faced any challenge at the hands of interested parties Ratio |
There is,however,a radical shift due to incorporation of S.25(2) where an interested party is granted the right to challenge the patent after its grant Ratio |
The ground of challenge under S.25(1) is identical to S.25(2) of the said 1970 Act Ratio |
However,S.25(1) is wider than S.25(2) as the latter is available only to a "person aggrieved".The main difference between S.25(1) and S.25(2),as brought about by Patents (Amendment Ratio |
Act,2005,is that even after a patent is granted,"post-grant opposition" can be filed under S.25 (2) for a period of one year Ratio |
The reason is obvious Ratio |
In relation to patents that are of recent origin,a higher scrutiny is necessary Ratio |
This is the main rationale underlying S.25(2) of the said 1970 Act Ratio |
Therefore,the Legislature intended an appeal under Section 117A(2) to the Appellate Board from any decision,order or direction of the Controller,inter alia,under S.25(4) [which refers to the power of the Controller to maintain,amend or revoke the patent Ratio |
In the present case,the Legislature intended to provide for two types of scrutiny followed by one statutory appeal to the Appellate Board against "post-grant proceedings".The Legislature intended to have a dichotomy between "pre-grant opposition" and "post-grant opposition".However,the Legislature intended that there s... |
The Legislature intended to obliterate appeal from "pre-grant proceedings",which existed earlier Ratio |
However,it was left to the Executive to bring the enacted law into force vide notification Ratio |
For some unknown reasons,the amended Ss.116 and 117A(2) were not brought into force till 2.4.07 whereas the concept of "pre-grant" and "post-grant" oppositions were brought into force w.e.f.1.1.2005.This is where the legislative intent got defeated during the interregnum Ratio |
It is during this interregnum that respondent no.3 filed its FAO No.293/06 in the High Court under Section 116,as Ratio |
it stood on 19.10.06 under the Patents (Amendment) Act,1999.On that date,the amended Section 117A,suggested by Patents (Amendment) Act,2005,was not brought into force Ratio |
On 19.10.06 the old law prevailed under which an appeal lay before the High Court Ratio |
Respondent no.3,in both the cases,preferred first appeals to the High Court u/s.116 as it then stood Ratio |
They are FAO No.292/06 and FAO Ratio |
No.293/06.We have to decide the fate of these pending appeals Ratio |
One more aspect needs to be mentioned Ratio |
Under the Patents (Amendment) Act,2005,appeal is provided to the Appellate Board against the order of the Controller under S.25(4).However,that statutory appeal is maintainable only in "post-grant opposition" proceedings whereas respondent no.3 herein has instituted first appeals under the law then prevailing,challengi... |
Taking into account the complexities involved in this case,on account of a hiatus created by reason of the law not being brought into force in time,we are of the view that the first appeals,filed by respondent no.3 in the High Court being FAO Ratio |
No.292/06 and FAO Ratio |
No.293/06,would remain in the High Court Ratio |
The said appeals would be heard and disposed of by the High Court in accordance with law u/s.116 of the said 1970 Act as it stood on 19.10.06.The High Court will hear and decide the validity of the Order passed by the Controller dated 23.8.06 rejecting "pre-grant opposition" filed by respondent Ratio |
no.3.We are informed that there are hardly one or two matters of this nature which are pending Ratio |
Therefore,we are of the view that respondent Ratio |
no.3 cannot be let without remedy Ratio |
In the special circumstances of this case,particularly when after 2.4.07 appeals against orders rejecting "pre-grant opposition" are not maintainable and particularly when FAO No.292/06 and FAO No.293/06 were filed by respondent no.3 prior to 2.4.07 under the old law,we are of the view that these two appeals shall be h... |
The Appellate Board after 2.4.07 is entitled to hear appeals only arising from orders passed by the Controller under S.25(4),i.e.,in cases of orders passed in "post-grant opposition Ratio |
Therefore,there is no point in transferring the pending FAO No.292/06 and FAO No.293/06 to the Appellate Board which has no authority to decide matters concerning "pre-grant opposition".Moreover,it may be noted that even Section 117G,which refers to transfer of pending proceedings to the Appellate Board,is also brought... |
would be sub served if the High Court is directed to hear and decide the appeals bearing FAO No.292/06 and FAO No.293/06 in accordance with law as it then stood,i.e.,u/s.116 under Patents Ratio |
Amendment) Act,1999 against Orders passed by the Controller in "pre-grant opposition" proceedings Ratio |
Accordingly,the two Civil Appeals,filed by the appellant herein,stand disposed of with no order as to costs RPC |
Appeal disposed of RPC |
Leave granted FAC |
Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court dismissing the writ appeal filed by the appellant on the ground that it was not maintainable FAC |
The appeal was filed u/s.2(1) of the M.P.Uchacha Nyayalay (Khand Nyaypeth Ko Appeal) Adhiniyam,2005 FAC |
hereinafter referred to as the 'Act').It was held that the order was passed in exercise of power of superintendence u/art.227 of the Constitution of India,1950 (in short the 'Constitution') against which the Letters Patent Appeal is not maintainable FAC |
The order of learned Single Judge was passed on 9.11.2005.Against the said order,special leave petition was filed which was disposed of by this Court by order dated 16.2.2006.We shall refer to the text of the order later FAC |
The High Court construed as if this Court has only waived the limitation for filing of Letters Patent Appeal and there was no direction to consider the case on merits FAC |
Learned counsel for the appellant submitted that the order of this Court is very clear and the conclusions of the High Court that merely limitation was waived is contrary to the clear terms of the earlier order of this Court ARG |
Additionally it is submitted that the prayer in the Writ Petition was to quash the order passed by the Assistant Commissioner,Commercial Tax ARG |
That being so,the mere fact that the writ petition was styled u/art.227 of the Constitution is of no consequence Ratio |
It is the nature of the relief sought for and the controversy involved which determines the Article which is applicable Ratio |
Learned counsel for the respondent-State on the other hand supported the impugned judgment of the High Court Ratio |
The earlier order passed by this Court dated 22.8.2006 reads as follows: "Heard FAC |
Since the impugned order is passed by a learned Single Judge FAC |
The normal remedy is to file a Letters Patent Appeal FAC |
Since we had entertained the Special Leave Petition against the learned Single Judge's order it would be appropriate to grant three weeks' time to the petitioner to prefer the LPA which if otherwise free from defect shall be entertained for being considered on merits FAC |
The interim order passed by this Court shall continue for the aforesaid purpose FAC |
The Special Leave Petition is disposed of accordingly FAC |
Underlined for emphasis FAC |
A bare reading of the order shows that the direction was to consider the LPA on merits and time was granted to prefer the LPA within three weeks Ratio |
The High Court was directed to dispose of the LPA on merits if it was otherwise free from defect Ratio |
The High Court was,therefore,not justified in holding that this Court's earlier order only waived the limitation for filing a Letters Patent Appeal Ratio |
On that score alone the High Court's order is unsustainable Ratio |
In addition,the High Court seems to have gone by the nomenclature gone by the nomenclature i.e.the discription given in the writ petition to be one u/art.227 of the Constitution Ratio |
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