R.Pal, J. - (1.) This matter has been assigned to this Bench at the instance of the learned single Judge on the ground that the issues involved in the matter are very important and require more authoritative pronouncement on the subject.
(2.) Questions have been formulated by the learned single Judge by his order dated 18th February, 1999 for determination of the larger Bench-(a) whether the appeal was maintainable under section 116 of the Patents Act, 1970 (referred to as the Act); and (b) whether the order of the Controller dismissing appellant's application under section 135 of the Act was in confirmity with the letter and spirit of section 133 of the Act or not.
(3.) We have taken up the first question at the outset before addressing ourselves to the merits of the matter. The facts briefly are that the applicant had applied on 31st March, 1999 in Italy for grant of a patent. Italy was declared a convention country as far as India was concerned on 3rd January, 1995. On 15th March 1995 an application was filed by the applicant under sections 133, 135 of the Act in which the applicant claimed priority on the basis of the application filed in Italy as a convention country. The Controller initially issued an order on 10th December, 1997 saying that the application was defective and give the applicant time to rectify the defects. The defects mentioned, inter alia, was that as the basic application had been filed in Italy on 31st March 1994 i.e. before the date Italy was declared as a convention country, the application could not be proceeded with as a convention application and, accordingly, the application should be filed in proper format. The applicant applied for an opportunity of being heard in order to persuade the Controller to hold that the application of the applicant under sections 133, 135 was not defective. By a reasoned order dated 6th July, 1998 the Controller held that the applicant was not entitled to claim priority on the basis that the basic application had not been filed before a convention country because when the application was filed in Italy, Italy was not a convention country. The Controller accordingly held that the application of the applicant 'shall not be proceeded as a convention application and if the applicant complied with the requirements as specified under the law it may proceed as an ordinary applicant'.;