Case Note & Summary
The petitioner, Dhaval Diyora, filed a pre-grant opposition under Section 25(1) of the Patents Act, 1970 against the patent application of Respondent No.4, Pfizer Products Inc. The Controller of Patents and Designs refused to grant the patent to Pfizer. Pfizer appealed to the Intellectual Property Appellate Board (IPAB) under Section 117A of the Act. The IPAB allowed the appeal and directed the Controller to grant the patent, but did not give any notice or opportunity of hearing to the petitioner, who was the pre-grant opponent. The petitioner filed a writ petition before the Bombay High Court challenging the IPAB order on the ground of violation of natural justice. The High Court held that the pre-grant opponent is a necessary party in the appeal and has a right to be heard. The IPAB's failure to hear the petitioner vitiated the order. The Court set aside the IPAB order and remanded the matter back to the IPAB for fresh hearing after giving an opportunity to the petitioner. The Court also directed that the petitioner be impleaded as a party in the appeal.
Headnote
A) Patent Law - Pre-grant Opposition - Right to be Heard - Section 25(1), Patents Act, 1970 - The IPAB allowed the appeal of the patent applicant and set aside the Controller's order refusing the patent without hearing the pre-grant opponent who had filed the opposition. The Court held that the pre-grant opponent is a necessary party and must be heard before the appeal is decided, as the opponent's rights are directly affected. The order was quashed and the matter remanded to the IPAB for fresh hearing after giving an opportunity to the petitioner. (Paras 2, 10-12) B) Patent Law - Pre-grant Opposition - Locus Standi of Opponent - Section 25(1), Patents Act, 1970 - The Court held that a pre-grant opponent under Section 25(1) has a right to be heard in the appeal against the Controller's decision, as the opponent is a person interested in the patent and the outcome of the appeal directly affects the opponent's opposition. The IPAB's failure to hear the opponent violated principles of natural justice. (Paras 10-12) C) Patent Law - Appeal before IPAB - Necessary Parties - Section 117A, Patents Act, 1970 - The Court held that in an appeal against the Controller's order in a pre-grant opposition, the pre-grant opponent is a necessary party and must be impleaded and heard. The IPAB's order without hearing the opponent is a nullity. (Paras 10-12)
Issue of Consideration
Whether the Intellectual Property Appellate Board (IPAB) could allow the appeal of the patent applicant and set aside the Controller's order refusing the patent without hearing the pre-grant opponent who had filed the opposition.
Final Decision
The High Court allowed the petition, set aside the IPAB order, and remanded the matter back to the IPAB for fresh hearing after giving an opportunity to the petitioner. The Court directed that the petitioner be impleaded as a party in the appeal.
Law Points
- Natural justice
- pre-grant opposition
- patent law
- right to be heard
- opportunity of hearing
- setting aside ex-parte order
