India: Time Stipulated In The Patent Act For Processing Of Application To Be Followed In Letter And In Spirit

Last Updated: 31 May 2011
Article by Sonam Lhamu Bhutia and Vasundhara Kamath S

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 First Respondent.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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