R. MURALIDHARAN Vs. CONTROLLER GENERAL OF PATENTS

JUDGEMENT

(1.) The petitioner, who is stated to be an Advocate, Law Teacher, Mediator and Registered Patent, claims that the time lines for examination of patent under the Patents Act, 1970 read with Rules thereunder are not followed resulting in years of delay. It is his submission that this time period can be reduced if the Patent Cooperation Treaty (PCT) Search Reports already obtained are treated as an essential input in the examination of the pending National Phase Application for patent of both Indian and foreign applicants.

(2.) With reference to the counter affidavit, the learned counsel for the petitioner submits that the respondents have misunderstood even the prayer made, as the defence is that the patent office has to independently scrutinize the applications. This is once again emphasized by the learned Assistant Solicitor General. In this behalf, he seeks to refer to the PCT Guidelines to contend that it has been observed therein as under:

(3.) The learned Assistant Solicitor General, however, concedes that if a PCT search report is already available, certainly that will be taken into account, though it may not be binding. He seeks to support this by the observation of the learned Single Judge of the Delhi High Court in Ten Xc Wireless Inc and Another v. Mobi Antenna Technologies, [2012] 187 DLT 632. The learned Single Judge observed that the International Search Reports issued by the World Intellectual Property Organization in respect of PCT application is not binding in view of Article 33(1) of the Patent Cooperation Treaty, which provides that the object of the International Preliminary Examination is to formulate a preliminary and non-binding opinion. Thus, the statutory duties of the Examiner concerned to conduct prior art search cannot be set aside or circumvented by relying on the findings of the International Search Report (ISR) or International Preliminary Report on Patentability (IPRP).