S.USHA,VICE -CHAIRMAN - (1.) THIS Review Petition is filed by the respondents 2 & 3 in the main application against the order dated 14/05/2013 passed by this Board in Miscellaneous Petition No. 33/2013 in ORA/15/2010/PT/DEL.
(2.) THE facts of the case is that: The original application is for revocation of the Patent No. 196774 under the provisions of the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005.
(3.) THE applicant herein filed a Miscellaneous Petition No. 33/2013 for taking on record 12 additional documents. The respondents filed their counter affidavit objecting to the Miscellaneous Petition being allowed. This Board heard the matter and passed an order dated 14/05/2013 allowing the Miscellaneous Petition as hereunder: - "11. Whenever documents are produced either at the proper time or belatedly and they are received by the judicial authority, it is always subject to proof, admissibility and relevance. The fact that they are received does not mean that they are accepted. They will be examined in accordance with law and the authority will decide whether they support the case of the party who produces the evidence." "12. In this case, the Petitioner claims that these documents would show that the duty under Section 8 of the Patents Act was breached by the Respondent. After Justice Ayyangar's report, when this Act came into force, the law makers have made the failure to disclose the information required by Section 8 as a ground for revocation. It stands on the same footing as anticipation or obviousness, no less. If anticipation and obviousness would vitiate the claim of innovation and result in revocation of the patent, non -disclosure of the information would also result in revocation. This is what the law says. If that is so, then the ratio in (1994) 4 SCC (cited supra) applies to this case. If they prove the Petitioner's case then these documents are essential for rendering justice. We do not see why we should shut the documents out merely because they have been filed with delay." "13. Candor and honesty is the sine qua non for a person who claims a monopoly and no patent which has been acquired by breaching this duty of candor shall remain. The patent litigation is imbued with public interest. We are surprised that the party who has not allegedly disclosed the documents which he was bound in law to disclose, should complain of suppression on the part of the other who is placing the same before us. The fact that the Petitioner has brought these documents may be belatedly, will not prevent us from receiving them. All that the Patentee can expect is an opportunity to rebut, which the Patentee shall have. However, we feel that there is a great laxity on the part of the parties to the patent litigation in bringing the documents and filing them at the earliest juncture. Whoever the party is, early filing of documents would be fair, except of course in rare cases. So we want to convey a message to the litigants and the members of the Bar that there is a duty to act with diligence and alacrity too, if a document is known to them. Therefore, we impose terms on the Petitioner as a condition for receiving the documents." "14. The question whether the Petitioner gave up Section 64(1)(j) or not will be decided when the revocation is heard. This is not the stage when we should decide that issue. This MP is primarily concerned with the reception of additional documents. The MP is allowed on condition that the Petitioner pays a sum of Rs.10,000/ - as cost within a week from today failing which the application will be dismissed as regards all the documents except US 221. The Respondent will have three weeks to file their response to these documents and the Counsel shall consult with each other and communicate to the Registry the date convenient to them for hearing the matter at Chennai, preferably before 30th June, 2013, because the Hon'ble Delhi High Court has asked the IPAB to hear the main matter in close proximity after this petition is disposed of." On receipt of the order, the petitioners found certain errors apparent on the face of the record and therefore filed this Review Petition on various grounds that: -;