MAGOTTEAUX INTERNATIONAL S A Vs. ASSISTANT CONTROLLER OF PATENTS AND DESIGNS
HIGH COURT OF DELHI
MAGOTTEAUX INTERNATIONAL S.A.
ASSISTANT CONTROLLER OF PATENTS AND DESIGNS
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BADAR DURREZ AHMED, J. -
(1.) The counsel for the parties have been heard at length. The order which is impugned before this court is the one passed on 30.03.2007 by the respondent No.1. Initially, the petitioner had applied for a patent in respect of its product known as "Composite Wear Component". The said application proceeded to the stage of pre-grant opposition. However, during that period four (4) amendments were sought by virtue of an application dated 02.09.2005 moved under Section 78 of the Patents Act, 1970. The pre-grant opposition period expired. No opposition had been received from the public by the respondent No.3. The amendments that were sought by the petitioner were allowed by an order dated 06.09.2005. The petitioner was also granted a patent by virtue of an order dated 02.12.2005. The only thing that remained to be done was the publication of the patent. Thereafter, on 18.01.2006, the respondent No.3 filed an application styled as a review application invoking the provisions of Section 77 (1) (f) as well as Section 78 of the said Act. The prayer in the review application was in respect of 3 out of 4 amendments that had earlier been allowed by the order dated 06.09.2005. This review application was, as indicated by the prayers contained therein, limited to the question of allowing of the amendments. Moreover, the challenge was only restricted to three amendments, out of the four that were granted. The fourth amendment being the amendment whereby the words "consisting of" were replaced by the words "comprising of". There is no objection with regard to this amendment.
(2.) The review application was dismissed subsequently. Thereafter, various rounds of litigation took place before this court. In the first instance, a writ petition was filed being WP(C) No.7841-42/2006 which was disposed of by an order dated 10.05.2006, whereby orders dated 28.02.2006 and 02.05.2006 were set aside. The matter was remanded to the respondent No.1 to consider the review application afresh and status quo as available on 18.01.2006 was directed to be maintained. On 28.07.2006, the respondent No.1 dismissed the review application once again but this time on technical grounds. The respondent No.3 filed a petition under Section 227 of the Constitution of India numbered as CM (M) 1152/2006. The same was disposed of by an order dated 20.12.2006 whereby the matter was once again remanded to the respondent No.1 for adjudication on the review application. In other words, the position was the same as had obtained after the issuance of the first order of this court. It is thereafter that the impugned order dated 30.03.2007 has been passed. The operative portion of the order reads as under:-
"40. It is evident, therefore, that grant of patent shall be made with seal of Patent Office and the date on which the patent is granted shall be entered in the register. On grant of patent the Controller shall publish the fact that the Patent has been granted. Therefore the grant procedure involved four distinct steps a. Grant by Controller on Patent file b. According of serial number of Patent c. Enntry of grant on register of Patent and issuance of letter of Patent d. Publication of grant u/s 43 (2)"
"41. Therefore, the process of grant completes on completion of all in four ingredients of granting process. In the instant case the procedure at i) and ii) above was completed on 02-12-2005. The grant was entered in the register of Patent on 03-02-2006. The letter of Patent was issued on 13-02-2006. The grant of Patent has not yet been published as per the official records. The public at large get to know about the grant of Patent after publication in the official Journal and if any person is interested to file opposition to the grant of Patent u/s 25(2) of the Indian Patents Act 1970, he gets a period of one year from the date of such publication."
"42. Considering all the oral and written submission by both the parties present in the hearing and keeping in view the various provisions of the patent law and the direction of the honourable High Court of Delhi, it is hereby ordered that all the "amendments" carried out u/s 78 of the Patent Act, 1970 as evident from the file noting of then Controller on 06.09.2005 are not allowable under the said provisions of the Act which deals with "corrections of clerical errors" and are hereby, treated as "not allowed". The application for patent is allowed to proceed for further action on the basis of complete specification as found in order for grant on 09.02.2005 except for the phrase "comprising of" which will be substituted by "consisting of" in the complete specification."
(3.) Mr Ashok Desai, the learned senior counsel appearing on behalf of the petitioners and Mr Rajiv Nayyar, the learned senior counsel appearing on behalf of the respondent No.3 understand the order to read as if the application for patent stands allowed with the amendment of the words "consisting of" being replaced by the words "comprising of". Their further understanding is that the impugned order only relates to the 3 amendments which had earlier been allowed but subsequently disallowed by the impugned order and that in respect of the disallowance of the amendments, the petitioners are free to move an appeal under Section 117 A of the said Act.;
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