K.N.BASHA,CHAIRMAN - (1.) THE petitioner who is the respondent No.3 in the appeal preferred this Miscellaneous Petition raising a preliminary objection questioning the maintainability of the appeal preferred by the appellant/respondent No.3 herein.
(2.) IT is seen that at the time of preferring the appeal this Board granted an order of stay in Miscellaneous Petitioner No.70/2010 seeking for the relief of stay and in Miscellaneous Petition No.71/2010 seeking for the relief of urgent hearing of the matter on 07.12.2011. This Board observed in that order that the impugned order was stayed by the order dated 07.12.2011 in the absence of the respondent who in spite of knowing that the date of hearing has chosen not to be present before the Board. Thereafter, the respondent No.3/petitioner herein preferred a Miscellaneous Petition No.46/2012 for vacating the stay order dated 07.12.2011 and the said petition is pending as on date. Meanwhile, the Respondent No.3/Petitioner preferred this Miscellaneous Petition No.2/2014 raising a preliminary objection of maintainability of the appeal.
(3.) MR . K. Duraisami, the learned senior counsel appearing for the petitioner/respondent No.3 would vehemently contend that the appeal preferred by the appellant itself is not maintainable on the ground of non compliance of Section 25(2) of the Patents Act, 1970 (hereinafter referred to as Act) and on the ground of violation of mandatory provision of Rules 55A, 57, 129 and 137 of the Patent Rules, 2003 (hereinafter referred to as Rules). It is contended that as per provision of the Section 25(2) of the Act, the appellant has filed the post grant opposition as per Form No.7 without written statement and they have filed a written statement subsequently on 17.11.2005 which is in violation of Rule 57 as Form No.7 and the written statement along with the evidence must be filed by the opponent together and copies to be sent to the Patentee simultaneously. It is contended that in view of violation of Rule 57 the post grant opposition is liable to be dismissed which was not done by the Patent Office. The learned senior counsel would point out that the said lapse was admitted by the appellant as they have stated in their letter dated 31.03.2006 sent through their counsel to the Controller of Patents that the written statement and evidence ought to have accompanied the notice of opposition as per provision under Rule 57 and therefore there has been a procedural irregularity. It is contended that similar statement was made by the appellant in the petition filed under Rule 137 praying for condoning the irregularity of procedure by exercising the discretionary powers.;