ADIUVO DIAGNOSTICS PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition raises the question as to whether discretionary jurisdiction under Article 226 of the Constitution of India may be exercised in respect of an order rejecting a pre-grant opposition.

(2.) The 4 th respondent herein filed Indian Patent Application No.9067/DELNP/2010 in respect of the invention titled 'Device and Method for Fluorescence-based Imaging and Monitoring'. The petitioner lodged a pre-grant opposition in respect thereof and such opposition was rejected while granting the patent by impugned order dtd. 19/7/2023. The present writ petition was filed in the said facts and circumstances.

(3.) Learned counsel for the petitioner submitted that the impugned order disregards material evidence and is completely unreasoned thereby justifying interference under Article 226. The first contention of learned counsel was that evidence placed on record by both parties finds no mention in the impugned order. In particular, learned counsel points out that the petitioner had placed on record the affidavit of Mr.Ananth Krishnan and, subsequently, the affidavit of Dr. Balasubramaniyam Pesala. After pointing out that these were affidavits of persons skilled in the art (PSITA), learned counsel contends that it cannot be said that these affidavits were considered in substance merely because the impugned order contains reference to cited prior arts.