SECRETARY, DEPARTMENT OF ATOMIC ENERGY, GOVERNMENT OF INDIA Vs. THE CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS

JUDGEMENT

(1.) The petitioner holds a patent for a process of treating exhaust gas emission produced during the combustion of coal in a coal combustion plant for reducing suspended particulate matter. The application to protect the invention was made in Jan. of 1999 and the patent was sealed in the petitioner's favour on April 26, 2005 whereupon the grant dated back to the time of the application. The petitioner's essential complaint is the illegal procedure adopted by the controller of patents to insist on hearing an objection of the fifth respondent to the patent without first taking up the petitioner's application for amendment of the patent. The petitioner maintains that it is the application for amendment that had to be taken up first and questions the controller's rationale to reject the proposed amendment "for the time being." The immediate grievance and the foundation for this petition are somewhat different.

(2.) The writ petition is being disposed of without calling for any affidavits as the facts are neither in great dispute nor is it necessary to encroach into the controller's domain to assess the strength of the objection or the quality of the proposed amendment. The principal contesting respondent has agreed not to use any affidavit but does not admit the allegations in the petition. The respondent authorities are represented but have been parsimonious in expending sound bytes and have left the parties to the patent proceedings to make the arguments.

(3.) The fifth respondent has questioned the propriety of the petitioner in bringing the matter before this Court. The principal contesting respondent asserts that this Court would not have the authority' to entertain the writ petition on the strength of either limb of amended Art. 226 of the Constitution of India. The objector says that the situs of the head office of the controller general of patents, designs and trade marks in Calcutta is irrelevant in the present case and the reference to the controller general in the cause title is misleading. The objector says that the only relevant person or authority against whom a writ may issue is the third respondent (erroneously described as the assistant controller of patents and designs, Kolkata) who has his office in Mumbai. According to the fifth respondent, the first and second respondents (the controller general and the deputy controller, Kolkata, respectively) have nothing to do with the subject matter of the petition, far less any nexus with the reliefs claimed. The objector states that clause (1) of Art. 226 would not permit the petition to be heard by this Court and the tenuous thread under clause (2) thereof that the petitioner has used as its lifeline to invoke this jurisdiction has long been snapped by authoritative judicial pronouncements.