SONALKUMAR SURESHRAO SALUNKHE Vs. ASSISTANT CONTROLLER OF PATENTS

JUDGEMENT

(1.) The present Petition is an Appeal under the provisions of Sec. 117A of the Patents Act, 1917 ('The Patents Act') impugning the Order dtd. 16/9/2021 passed by the Respondent. The relevant parts of the said Order read as under:

(2.) Mr.Bhadang, the learned counsel appearing on behalf of the Respondent, raised a preliminary objection that the present Petition is not maintainable. Mr.Bhadang pointed out the provisions of Sec. 117A of the Patents Act and submitted that Sec. 117A does not provide for an Appeal against an Order passed under Sec. 21(1) of the Patents Act. He submitted that, since the impugned Order was passsed under Sec. 21(1) of the Patents Act, the present Appeal was not maintainable.

(3.) In response to this preliminary objection raised by Mr.Bhadang, Mr.Kamod, the learned counsel appearing on behalf of the Petitioners, submitted that, in the present case, the FER was issued on 24/6/2019. He submitted that the Petitioners had responded to the said FER by their reply dtd. 24/12/2019. In the reply dtd. 24/12/2019, the Petitioners had responded to all the requirements under the FER. He further drew the Court's attention to a letter dtd. 15/9/2020 issued by the Petitioner as a follow up to the reply dtd. 24/12/2019. Mr.Kamod submitted that, since the Petitioners had responded to the requirements in the FER, the Petitioners could not have been said to have abandoned their application under Sec. 21(1) of the Patents Act. Mr.Kamod submitted that, if the Respondent found that the Application was required to be rejected as the response of the Petitioners was not satisfactory, then the Order is an Order passed under Sec. 15 of the Patents Act, which is appealable under Sec. 117A. Mr.Kamod submitted that, therefore, the present Petition was maintainable. In support of his submissions, Mr.Kamod relied upon the judgements of the Delhi High Court in Merck Serono S.A. vs. Union of India, , Telefonaktiebolaget LM Ericsson (PUBL) vs. Union of India (UOI) and Ors., and Ferid Allani vs. Union of India (UOI) and Ors.,