PUNEET KAUSHIK Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners before this Court claim to have filed on 14.9.2012, in the Patents Office (India) at New Delhi, an international (PCT) application in terms of Rule 18.3 of the PCT Rules, enclosing therewith (i) Form-25 (in duplicate) on behalf of petitioner no.1 Puneet Kaushik (ii) Power of Attorney for Form-25 (copy) (iii) PCT Request along with Declaration of Inventorship (in duplicate) (iv) PCT Power of Attorney (v) complete specification along with drawings (in duplicate) (vi) PCT fee calculation sheet and (vii) PCT Easy documents in CD with the transmission fee of Rs.8,000/- and Form-25 fee of Rs.4,000/-. It was stated in the covering letter that since the PCT application was first filed for the invention, they were also enclosing Form-25 as per the practice of Indian Patent Office.

(2.) An email dated 14.9.2012 was sent by Ms. Neeti Wilson of M/s Anand and Anand, counsel for the petitioners, to the respondent, in relation to the filing of PCT application and seeking clarification regarding validity of the jurisdiction of RO/IN. One of the confirmations sought in the email was that international filing date was independent of the forwarding of the record to IB by RO. The said email was responded on the same date by Eva Schumn of PCT Information Service Section, PCT Legal Division, confirming that their understanding was correct and drawing the attention to the PCT Rule 20.2. and 22.1(a) and (e). This was followed by another email from Neeti Wilson to K.S. Kardam of the Patent Office, with copy to Kavita Taunk and Archana Shanker of the said office, stating therin that though the PCT application was duly submitted to their office on 14.9.2012, that had not been taken on record, on the ground that the application was not within the jurisdiction of RO/IN and was not accompanied by permission for filing outside India first. It was stated in the said email that RO/IN was the correct jurisdiction for the PCT application since one of the applicants is an Indian resident and RO/IN cannot refuse to accept the first filing PCT application, irrespective of a permission letter being attached or not, though a request for permission in F-25 was duly attached. A request was made to take PCT application on record with international filing date as 14.9.2012. Earlier, another email was sent by Neeti Wilson to Mr. K.S. Kardam of the respondents, on the same date, with copy to Kavita Taunk, stating therein that they had sent a first filing PCT application on that date, seeking allotment of international filing date as of that date. Vide email dated 15.9.2012 M/s Anand and Anand to Mr. K.S. Kardam of Patent Office was requested that the application be taken on record, assigning international filing date of 14.9.2012. On receipt of the said email, Mr. K.S. Kardam of the Patent Office requested Kavita Taunk of the said office to look into the matter. Vide email dated 17.9.2012 from Kavita Taunk of the Patent Office informed Archana Shanker of M/s Anand and Anand that she had asked Neeti Wilson and Cyril to submit the application on 14.9.2012 and had waited till 6.15 pm on that date, but they had refused to file saying that they would only file Form-25 and, therefore, on 17.9.2012 they could not get the filing date of 14.9.2012. Responding to this, Neeti Wilson of M/s Anand and Anand wrote to Ms. Kavita Taunk clarifying that they never refused to file PCT application and in fact all the documents pertaining to the application were duly submitted along with Form-25 on 14.9.2012 and the only confusion was RO/IN was a valid receiving office which had since been clarified. Replying to the said email, Kavita Taunk wrote of Neeti Wilson on the same date stating therein that she had requested them to submit PCT application and a separate Form-25 from the said application because both had to be processed separately. She further stated that there was only one set of document with Mr. Cyril and he had option to file either Form- 25 or PCT International Application, so Mr. Cyril informed her that he had been directed to file Form-25 only.

(3.) The grievance of the petitioners is that despite their having submitted international PCT application, the respondents have not given international filing date of the said application to them. The petitioners are therefore before this Court seeking the following reliefs: