S.USHA - (1.) THE above matter was posted for deciding the issue of maintainability. The Registry of the Board had raised the issue as to the maintainability of the appeal against an order passed under section 7 of the Patents Act, 1970.
(2.) LEARNED counsel Shri Hemant Singh appeared on behalf of the appellant and submitted that the appellant filed the PCT application before the U.S.Patent & Trade Marks office on 29.10.2007. The said application claimed priority from U.S. Application No. 60/856656 dated 03/11/2006 and U.S. Application No. 60/936866 dated 22/06/2007. The appellants made an attempt to file the patent application in October 2009, after becoming aware of the failure to meet the 31 months national phase deadline. The papers were presented in person in the office of the Patent Registry which was not taken. Therefore, the appellants had sent it by courier. The Patent Office had rejected the same stating that the same was filed out of time and could not be taken on record.
(3.) THE appellants, being aggrieved filed a Writ Petition before the Hon'ble High Court of Delhi. The Hon'ble High Court held that an applicant for patent can file a national phase application after 31 months provided an application to explain the delay under Rule 137 was filed. The applicants may file the same along with an application for condoning the delay and therefore the Controller to take on record the application and to hear and pass an order was the decision of the Hon'ble High Court of Delhi. After hearing the appellants, the 2nd respondent passed the impugned order under section 7 of the Patents Act, 1970 read with Rule 137 refusing to take their application on record.;