HINDUSTAN UNILEVER LIMITED (FORMERLY KNOWN AS HINDUSTAN LEVER LTD.) Vs. THE CONTROLLER OF PATENTS & DESIGNS PATENT OFFICE & OTHERS

JUDGEMENT

(1.) THIS appeal is filed against the rejection of a divisional application on the ground that it does not conform to S. 16 of the Patents Act, 1970.

(2.) THE learned counsel for the appellant Shri S. Majumdar submitted that in the recent orders of Intellectual Property Appellate Board (IPAB), it has been made clear that no divisional application is maintainable if there is no plurality of invention and therefore, he submitted that on merits, he may not have a case. However, he requested that he may be permitted to bring to the notice of this Board certain difficulties in the prosecution of a patent, which results in inventors seeking a division. In the instant case, the patent was applied for an invention entitled "ANTIPERSPIRANT COMPOSITIONS". The First Examination Report (FER) was issued on 11/11/2005 raising certain objections. The appellant gave their explanation. Then, a Second Examination Report was sent which was received by the inventor almost at the end of the 12 month period that is given to them under law for putting an order to the application. The learned counsel submitted that since the time for putting the application in order had lapsed and since the appellant desired to get a patent for invention, a divisional application was made. The learned counsel submitted that the Act does not provide for a Second Examination Report and further the 12 months period that is available to the patentee cannot be cut short, by the Patent Office by retaining the files for a length of time and returning it to the applicant with the Second Examination Report. He submitted that certain directions from the Board may be required.

(3.) THE time for putting an application in order for grant under S. 21 is given in Rule 24B(4). It says that it shall be 12 months from the date on which the first statement of objection is issued to the applicant to comply with the requirement. S. 14 deals with the consideration of the report of the Examiner by the Controller. S. 12 deals with examination of application and how the Examiner shall do it. S. 12(2) says that the Examiner to whom the application is made shall ordinarily make the report to the Controller within such period as may be prescribed. Therefore, from the date on which the First Examination Report is issued to the applicant, the applicant has 12 months. What has happened in the present case is, a situation where the applicant is denied the twelve months that the Law allows him. The Patent applicant shall not suffer for the time that the application spends in the IPO before the matter is taken up for hearing by the Controller.