GUNJAN SINHA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged the vires of Sec. 53 of the Patents Act, 1970 (for short, 'the Patents Act').

(2.) The primary ground of challenge is that as per Sec. 53(1), the term of every patent granted after the commencement of the Patents (Amendment) Act, 2002 and the term of every patent which has not expired and has not ceased to have effect on the date of such commencement, shall be twenty years from the date filing of the application for the patent.

(3.) It is argued that as per the provisions of the Patents Act, the patent confers rights on the patentee to institute litigation for infringement and have all other rights of a patentee only from the date of grant of patent. Sec. 11-A, introduced by the 2002 Amendment with effect from May 20, 2003, under sub-sec. (7) thereof, provides that on and from the date of publication of the application for patent and until the date of grant of patent, the applicant shall have the like privileges and rights as if a patent for the invention had been granted on the date of publication of the application. The proviso thereto says that the applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted.