In an attempt to assert one's rights in a patent, the recent
case of Nokia Corporation Versus Assistant Controller Of
Patents And Designs 2009(41) PTC102(IPAB) witnessed the
Intellectual Property Appellate Board grant an order permitting
appeal and further directing the Assistant
Controller of Patents and Designs to grant patent. The present suit
was brought before the Appellate Board in respect of alleged
infringement being caused to the rights of appellants, Nokia
Corporation, by the Assistant Controller of Patents and designs,
respondent. Nokia had entered into the national phase in various
countries including India. Assistant Controller examined the
national phase application and certain objections both technical
and formal regarding the procedural matters were pointed out. The
dispute arose because Nokia submitted the date of filing ofthe
national phase application in India based on international Patent
Cooperation Treaty application. Assistant Controller of patent
objected to this on the ground that the international filing date
shall not be considered as the filing date of national phase.
Assistant Controller granted Nokia a chance to be heard. Even
though Nokia provided full details regarding the actual date of
filing of national phase the Assistant controller refused to grant
patent on the ground that applicant had given false information and
failed to disclose the necessary information to the Assistant
Controller as per Section 8 of Patents Rules 2003.
The Nokia averred that the Assistant Controller violated the international
laws and national laws. The learned counsel representing Nokia
alluded to Article 11 (3) of the Patent Cooperation Treaty which
states that the international filing date shall be considered as
the actual filing date of the national phase application filed in
each designated state and to Section 7 and Section 138 (5) of the
Act which mentions about the filing date of the application filed
as a national phase application in India based on international PCT
Nokia further contented that other
international patent offices had confirmed the date of application
of these national phase application as the international filing
date. In this pursuance Nokia Corporation enlightened upon Section
53 of the Act and stated that the term of the patent once granted
on the national phase application will be calculated from the
international filing date accorded under the PTC and not from the
date of filing of national phase application in India
However Assistant Controller of
Patents contented that on the international date of filing there
existed no national phase application and that the national phase
application was filed subsequently thus the appellant did not have
the right to change the national phase entry date given by the
National Patent Office with date of the international filing. It
was further contented that Nokia failed to disclose correct
information to the Assistant Controller as required under Section
8, but actually furnished information which was false to his
knowledge leading to the rightful refusal of the application for
grant of Patent.
On comparison of claims, the
Appellate Board held that refusal of patent would put Nokia
Corporation into terrible loss and also such a judgement would
become a wrong precedent in patent procedure. The Board mentioned
that Nokia Corporation had not failed in its duty to disclose
information to the Assistant Controller as stipulated by Section 8
of Patent Rules 2003. Such information furnished being correct to
the knowledge of the Assistant Controller. The Board further
opinioned that according to PTC provisions, such as Section 1(1B)
and 11(3) the international filing dates shall be considered to be
the actual filing date in each designated state. In this veiw the
Board allowed the appeal without costs and the impugned order of
the Assistant Controller was set aside, further directing him to
grant a Patent.
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Department of Industrial Policy and Promotion recently issued an office memorandum pursuant to receiving representations from various stakeholders for guidance with respect to the applicability of the provisions of Section 31D of the Copyright Act, 1957.
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