The Indian Judiciary often
witnesses disputes and debates centered around the tenets of
administrative law. In a dispute regarding communication of an
examination report, the well established principles came up for
consideration yet again. The case of Ferid Allani v.
UOI 2008 (37) PTC 446 (Del.) at the High Court of
Delhi deals with the issues elucidated.
In the case at hand, the
communication from the office of the Controller of Patents and
Designs was dated 21st September 2005 and was
designated the same date as the expiry date to put the
application in order for acceptance. This communication reached
Allani on the 24th of September 2005, and
consequently was deprived of the opportunity to comply with the
requirements communicated. Further, on communicating the same
to the authorities, Allani learnt of the application being
abandoned in furtherance of which Allani approached the High
Court of Delhi vide a writ petition challenging the abandonment
as patently illegal.
Examining the provisions of the
Patent Act, 1970, read with the rules as under the Patent Rules
2003, the patent must be published in the Gazette after a
period of eighteen months from the date of filling. (S. 11A).
The applicant has to file a request for examination, as
stipulated under S.11B and the same was complied by Allani. The
Examiner, within a period of three months of the application
issues an examination report. A response to the same may be
filed within a period of six months. However, an extension of
three months may be granted under the rules. Allani sought an
extension beyond the six-month period, and the same was granted
for a period of one month. Allani completed the formalities
within the stipulated period. The second examination report,
issued pursuant to this is the communication under
The Counsel for Allani strongly
averred the late receipt and consequent inability to answer the
second statement of objections, which was in the nature of a
second examination report. They also submitted that the
application was abandoned, without communicating a formal or
speaking order on the same.
The interpretation of the phrase
"within the time prescribed", in the purview of S.21
of the Act was questioned. The counsel for Allani contended
that the statute was silent on the time period on the lapse of
which the applicant would be considered to have failed to put
an application in order for grant after second or more
statement of objections. They also contended that there was
nothing on their part that portrayed the presence of an
intention to abandon the application.
Assessing the impact of a deemed
application, the Court stated that the impact of the deemed
abandonment was inasmuch as being deprived of its rights as
under S. 48. It was also observed that while the provision of
appeal existed with respect to several provisions of the
Patents Act, 1970, yet none of them were directed against an
order of deemed abandonment of the application. They also
observed that no procedure or method to deal with or serve or
prepare a second examination report had been elucidated. The
Court directed its attention to S. 14 of the Patents Act which
deals with "Consideration of the report of the examiner by
the Controller". In the light of this section, the Court
rendered that a lack of opportunity to hear Allani neither in
response to the first examination report, nor after the second
examination report amounted to the failure of the authorities
to abide by the principles of natural justice.
The Court examined a plethora of decisions dealing with the
interpretation of statutes and principles of natural justice.
Heeding attention to rules enumerated in the Patents Act, with
special emphasis on Rule 138 and 129, the High Court allowed
the writ petition, quashing the deemed abandonment as wholly
unwarranted and improper. Allani was further permitted to
submit their reply to the objections within a time frame of
four weeks from the date of passing the judgment.
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