D.P.S.PARMAR - (1.) THIS is a petition filed by Tata Tea Limited for revocation of patent No. 184038 entitled "A Method of Making A Tea Composition" granted to Hindustan Lever Private Limited. This revocation application was originally filed in the Hon'ble High Court of Bombay under Miscellaneous Petition No.9 of 2004. The Hon'ble High Court of Bombay in its order dated 5.10.206 framed the following issues: (i)Whether the Petitioner proves that Patent No.184038 dated 28th May, 1997 granted to the First Respondent ought to be revoked? (ii) Whether the Petitioner proves that the invention as claimed in any claim of the complete specification was not new as alleged? (iii) Whether the Petitioner proves that the invention so far as claimed in the claims of the complete specification was obvious and did not involve any inventive steps as alleged? (iv)Whether the Petitioner proves that the complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed and/or does not disclose the best method of performing it as alleged? (v)Whether the Petitioner proves that the scope of the claims of the complete specification are not sufficiently and clearly defined and/or the claims are not fairly based on the matter disclosed in the specification as alleged? (vi)Whether the subject of the claims of the complete specification No.184038 are not invention within the meaning of the Act? (vii)Whether the Petitioner proves that the patent was obtained on false suggestion or representation as alleged? (viii)Whether the Petitioner proves that the 1st Respondent has failed to disclose to the Controller the information required by Section 8 or has furnished information, which in any material particular was false as alleged? (ix)Whether the 1st Respondent proves that the petition is barred by the law of limitation?
(2.) ON 7.07.2007 the Hon'ble High court of Bombay transferred this application to the IPAB in view of the notification dated 02.04.2007 and 0304.2007 issued by the Central Government. Accordingly, this application was numbered as TRA/1/2007/PT/MUM by the IPAB registry. This matter came up for hearing on 28.05.2012. Learned counsel H.W.Kane along with Dr. P. Ganguli appeared for the applicant and Learned counsel Mr. S. Majumdar assisted by Mr. Dominic Alverez and Mr. Suman Bhattacharya appeared for the respondent No.1. Preliminary objection
(3.) THE counsel for the respondent No. 1 submitted that the instant transferred rectification application is time barred as it is filed beyond the statutory time limit despite statutory public knowledge. He submitted that the issue of limitation of the instant revocation petition was before the Hon'ble High Court of Bombay. According to the counsel, in absence of any infringement suit against the petitioner, it cannot be said that the cause of action arose on any day other that on which it was statutorily brought to public knowledge. According to the counsel filing of patent application 825 BOM 1997 was notified on 02.11.1997 through the Gazette Notification. Further, the counsel submitted that on 03.06.2000 the public was made aware about the acceptance of the Patent Application No.184038 for filing opposition. Again on 13.01.2001, public had been made aware of sealing of this patent through the Gazette Notification. Therefore, the counsel argued that right to apply for revocation of the said patent accrue from the date of publication of notification of sealing on 13.01.2001.The counsel submitted that three years time to comply with requirement of Article 137 of the Limitation Act, 1963 expired on 13.01.2004. Therefore, the instant revocation petition filed in April 2004 is clearly beyond the limitation period and thus time barred. The counsel for the applicant submitted that it came to learn about the impugned patent in May, 2003 when it received copies of the first respondent's reply statement and evidence in support of application No. 186347 which was opposed by the applicant. In view of this the counsel submitted that the present petition is filed on 19.04.2004. The counsel for the applicant submitted that Article 137 of the Limitation Act provides that in respect of any other application for which no period of limitation is provided elsewhere, the period of limitation is three years from the time when right to apply accrues. The counsel for the applicant submitted that since the present application has now been transferred to the IPAB, and the IPAB is not a Court within the meaning of Limitation Act, 1963, the provisions of the said Act do not apply to the present revocation application. The counsel submitted that upon conferment of powers to try and entertain the petition for revocation of patent by the IPAB, the IPAB became entitled to try and entertain a petition for revocation of impugned patent. The counsel contended that it is possible for the applicant to withdraw the revocation application filed before the Hon'ble High Court and file a fresh revocation application before the IPAB. In such an event the counsel argued that the Limitation Act would not apply as the applicant would be entitled to file revocation petition much in time. This would, the counsel contended, lead to multiplicity of proceedings in the interest of justice.;