HIRALAL BANJARA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for a writ in the nature of Mandamus directing the Respondents to act in terms of Sections 15 (5) and 15 (6) of the Indian Patents and Designs Act 1911 by extending the term of the patent for a further term not exceeding 10 years or by granting a new patent for the said term and to forbear from giving effect to the orders of rejection of the petitioners' application dated the 12th April, 1954, and also directing Respondent No. 2 to act in terms of Rules 25 (2) and 25 (14) of the Indian Patents and Designs Rules, 1933.

(2.) On 12th July, 1928, the petitioner Hiralal Banjara was granted a letters patent in respect of his invention of a machine entitled "The improved machine for removing husks and shells from massor and the like". The said patent was for a term of 16 years. The petitioner No. 2 having been assigned a share of the said patent by the petitioner No. 1 Hiralal, the petitioners are now joint holders of the said patent. On or about the 28th November, 1944, upon an application made by the petitioner under Section 15 of the Indian Patents and Designs Act 1911, a new patent was granted to the petitioners for a term of 5 years. The said period of 5 years was due to expire on the 12th July, 1949, but ultimately in pursuance of Clause (2) (b) of the Patent (Extension of Term) Ordinance, 1948, the term was further extended up to 12th July. 1954. It is alleged that owing to various litigations relating to the infringement of the said patent by various persons the patent had not been remunerative at all, as the petitioners had to prosecute the said litigations or to defend them for a period of 26 years during which the said litigations had been pending, On 12th January, 1954, the petitioners made an application for a further extension off the term of the patent under Section 15 of the Act and alternatively the petitioners prayed that under Section 15 (3) the petitioner might get a chance to place their case before the Hon'ble High Court for further extension. The case of the petitioner further is that although the second application for extension was made, the Controller, Respondent No. 2, did not act in terms of Rule 25 of the Indian Patents and Designs Rules. In violation of the said Rule the Controller failed to advertise the said petition in the Official Gazette nor did the Central Government consider the petition at all having regard to the merits and the invention nor did the Union give the petitioner any hearing or consider the fact whether the patent had or had not been sufficiently remunerative to the petitioner; but on the 12th April, 1954 the Union of India informed the petitioners that the second application for extension of the time did not lie under Section 15 of the Act and as such the Government was unable to consider the question of granting an extension. It is the validity of this order which has been challenged in this application.

(3.) Mr. Sanat Kumar Mukherjee the learned Advocate for the petitioner has argued that successive applications for ex-tension of the term of a patent are maintainable under the provisions of Section 15 of the Act and it was therefore incumbent upon the Controller of Patent to act in terms of Rule 25 of the Rules and to advertise the petition in the Official Gazette and to carry out the other obligations which are imposed upon him under the different clauses of the Patent and Designs Rules. The learned Advocate has drawn the attention of the Court to the expression "a further patent" as appearing in Section 15A, of the Act and the expression "a suit" as appearing in Section 29 of the Act and contends that as it is open to the patentee to institute more than one suit in respect of successive infringements of patents under Section 29 of the Act so it is open to the patentee to make successive applications for extension of the term of the patent under Section 15 and the expression "a further term" does not restrict the power of the patentee to make only one application for such explanation. I do not think that this contention of Mr. S. K. Mukherjee can be accepted. Section 14 (1) of the Indian-Patents and Designs Act 1911 provides that the term limited in every patent for the duration, thereof shall, save as otherwise expressly provided by this Act, be sixteen years from its date. So it is clear that the normal life of a patent is contemplated to be a period of 16 years under this section of the Act. Section 15 (1), (3) and (6) are as follows :