The Patent Act of 1970 and Rules of 2003 clearly lay down the
time for the processing of a Patent Application. The Madras High
Court in Dr. Vinitha Ponnukutty v. Controller of Patents
& Designs and anr held that such time that was
stipulated was to be followed in letter and in spirit. Shortage of
staff in the Office of the Controller General of Patents could not
be considered as an excuse for delay in process of Application.
A brief outline of the aforementioned case is as follows:
The Petitioner, Dr. Vinitha Ponnukutty, a Doctorate Degree
holder from the University of Madras, had specialized in the
'Formulation, Standardisation and Evaluation of two low cost
indigenous enteral tube feeding formulae for critically ill
patients'. After extensive research for six years she had
developed a unique and cost effective indigenous enteral tube
feeding formulae, which according to her, would be an excellent and
cost-effective substitute to the existing high-priced commercial
tube-feeding formulae. After completing her thesis and obtaining
her Doctorate Degree, she had applied for grant of patents for her
inventions viz., 'Enteral Tube Feed Formula for critically ill
patients' and 'Enteral Tube Feed Formula for critically ill
diabetic patients'. On account of delay in the granting of the
patents, the Petitioner approached the High Court of Madras seeking
issuance of a Mandamus directing the Controller of Patents and
Designs (First Respondent) to process her patent applications. The
Ministry of Industry and Commerce, Union of India, which oversees
the working of the Office of the Controller General of Patents and
Designs, was made the Second Respondent.
The Petitioner brought to the attention of the Court the
formalities with regard to the application of the patent under
Section 12 of the Patent Act, 1970 and Rules 24 B (2) and (3) of
the Patent Rules, 2003, which had been complied with by the
Petitioner. At the same time the undue delay on the part of the
First Respondent was highlighted. The Patent Act 1970 stipulates
for the publication of the application in the Official Patent
Gazette on the expiry of18 months from the date of filing or date
or priority, whichever is earlier. Thereafter Section 12 of the Act
requires for the examination of the application, specification and
other documents, after the Applicant has filed the request for such
examination. The Petitioner had completed the requirements on its
part within the time stipulated by the Act. However, the
Respondents did not refer the Application for examination, which
was to be done by February 20, 2009. The Petitioner fearing that
her inventions would be tampered with chose to file the Writ
Petition under Article 226 of the Indian Constitution.
On the other hand, while the Respondents conceded that the
Petitioner's Application deserved to be considered within the
stipulated time, they cited the reason of want of staff for the
delay in considering the Applications of not just the Petitioner,
but also several inventors across the country.
The Court made it clear that the Respondent's excuse of
shortage of staff for the delay in processing Applications was
unacceptable, as the time specified in the Act for disposal of the
Application was to be followed in letter and in spirit. It was also
noted that the Petitioner's Application had been pending since
the year 2007 and therefore required immediate attention by the
On consideration of these factors, the Madras High Court
directed the First Respondent to process both the Applications of
the Petitioner by referring the same for examination. The First
Respondent was further directed to issue the First Examination
Report within a period of five months from the date of the receipt
of a copy of the Order in this case.
The Ministry of Industry and Commerce (Second Respondent) was
directed to look into the shortage of staff so that the inventions
would not be diluted as a result of non-registration. Further, it
was instructed to address the problem of want of staff by
recruiting the required number of persons.
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