SNEHLATA C GUPTE Vs. UNION OF INDIA

JUDGEMENT

(1.) Since in all these appeals pure question of law arises for determination, to consider that question, facts of LPA No.561 of 2010 shall suffice as that would serve the purpose.

(2.) The respondent No.5, viz., J. Mitra & Co. Ltd had filed two patent applications in the Office of the Controller of Patents on 14.6.2001. Patent Specifications were published in the official gazette on 20.11.2004 in terms of Section in terms of Section 11A of the Patents Act (hereinafter referred to as 'the Act'). As per provisions of Section 25 (unamended) of the Act, which held the field at that time, an opposition to the grant of patent could be filed within four months from the date of publication. Such a period could be extended by one month by the Controller on being satisfied by the reasons given for such delay. One M/s. Span Diagnostics Ltd. (SDL) filed pre-grant opposition. It was considered by the Controller and vide detailed order dated 23.8.2006, the Controller rejected this opposition. On rejection of pre-grant opposition, the Controller ordered grant of patent on the application of the respondent No.5 putting a particular condition. Since this portion of the order is bone of contention, we would like to reproduce the same hereunder:

(3.) As per the appellant, she had sent pre grant opposition by currier on 22.8.2006 which was received by the Patent Office on 24.8.2006. As on that date, Section 25 (1) of the Act stood amended by the Patents (Amendment) Act, 2005 with effect from 01.1.2005. As per the amended provision, the time for filing a pre-grant opposition stood extended till the grant of patent. According to the appellant, her pre-grant opposition received on 24.8.2006 was within time as per the Amended provision of Section 25(1) of the Act inasmuch as there was no patent granted by that time. It was her case that the patent is not granted till such time it is not sealed and entered in the Register in terms of Section 43(1) of the Act and such a patent was granted on 22.9.2006. On the other hand, the respondent No.5 pleaded that when the objections were rejected on 23.8.2006 in terms of Rule 55(6) of the Rules, no application for pre-grant opposition was maintainable.