BAYER AKTIENGESELLSCHAFT OF LEVERKUSEN FEDERAL REPUBLIC OF GERMANY Vs. CONTROLLER OF PATENTS GOVERNMENT OF INDIA

JUDGEMENT

(1.) This is an application Under Section 71 of the Patents Act 1970 for rectification of the entry relating to Patent No. 139978 in the register of the respondent. This application is contested by the respondent.

(2.) It is alleged in the petition that Chlorothio-N-Phthalimide is a novel compound and is a new intermediate product suitable for producing various products such as herbicidai compounds or auxiliary agents for rubber. This compound can also be used in the preparation of other compounds which in turn can be used in the treatment of disease in human beings and animals. But this compound by itself is not intended nor is capable of being used as a drug or medicine as defined in Section 2 (1) (1) of the Act. The respondent, however, wrongly classified this product as a 'drug' and fixed the period of the patent for 7 years from the date of the sealing. According to the petitioner the period of this novel compound should have been 14 years by virtue of the provision of Section 53 of the Act. Hence this application for rectification of the register by deleting 7 years and inserting in its place 14 years.

(3.) The respondent filed an affidavit-in-opposition affirmed on 12-1-1981 by one Shanti Kumar Joint Controller of Patents and Designs. According to the respondent this compound is a medicine or drug within the meaning of Section 2 (1) (11 of the Patents Act 1970 and as such the period of patent should be limited to 5 to 7 years from the date of sealing or the date of the patent whichever term is shorter, under the provision of Section 53 (1) (a) of the said Act. Classification of this compound and its 7 years term have been correctly done in accordance with this Act. The respondent further stated that the petitioner as a patentee did not raise any objection when the patent document was issued to him on 28-6-1977 providing for 7 years time from 5-5-1974. This belated application is barred by limitation.