Case Note & Summary
The petitioner, Universidad Politechnica De Valencia, filed a patent application in India on October 16, 2002, claiming priority from a Spanish application. After examination, the first examination report was issued on June 15, 2005, and the petitioner responded on November 25, 2005. The examiner issued a further official action on December 13, 2005, just before the deadline. The petitioner sought a three-month extension, which was granted, and filed a response on January 4, 2006. Further objections were raised on January 24, 2006, and the petitioner responded on March 3, 2006. Despite requests for a hearing, the respondent No.3 issued an order on September 12, 2006, deeming the application abandoned under Section 21(1) of the Patents Act, 1970. The petitioner challenged this order by way of a writ petition. The court found that the order was passed without giving the petitioner an adequate opportunity of being heard and without providing any reasons. The court held that the principles of natural justice were violated and set aside the impugned order, directing the respondent to reconsider the application afresh after giving the petitioner a proper hearing and passing a reasoned order.
Headnote
A) Patent Law - Deemed Abandonment - Section 21(1) Patents Act, 1970 - Natural Justice - The petitioner's patent application was deemed abandoned without providing a proper opportunity of hearing and without a reasoned order - The court held that the principles of natural justice require that before an adverse order is passed, the applicant must be given a fair hearing and the order must contain reasons - The impugned order was set aside and the matter remanded for fresh consideration (Paras 2-6).
Issue of Consideration
Whether the order of deemed abandonment under Section 21(1) of the Patents Act, 1970 was valid when the petitioner was not given an adequate opportunity of hearing and the order lacked reasons.
Final Decision
The court allowed the writ petition, set aside the impugned order dated September 12, 2006, and directed the respondent No.3 to reconsider the patent application afresh after giving the petitioner a proper opportunity of hearing and passing a reasoned order in accordance with law.
Law Points
- Principles of natural justice
- duty to give reasoned order
- opportunity of hearing before adverse decision
- deemed abandonment under Section 21(1) of Patents Act
- 1970
Case Details
2010 LawText (BOM) (02) 87
WRIT PETITION NO. 1435 OF 2007
FERDINO I. REBELLO, A.R. JOSHI
Dr.Virendra V. Tulzapurkar, Senior Counsel with Mr. Amit Jamsandekar and Mr. R. Gajaria i/b. Gajaria & Co., for petitioners; Mr. A.M. Sethna with Mr.M.S. Bharadwaj for respondent No.1
Universidad Politechnica De Valencia
Union of India through the Secretary, Department of Industry Ministry of Industry and Commerce; The Controller General of Patents & Designs; The Asst. Controller of Patents
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Nature of Litigation
Writ petition challenging the order of deemed abandonment of a patent application under Section 21(1) of the Patents Act, 1970.
Remedy Sought
The petitioner sought to quash the order dated September 12, 2006, and to direct the respondents to reconsider the patent application after giving a proper hearing.
Filing Reason
The petitioner's patent application was deemed abandoned without providing an adequate opportunity of hearing and without a reasoned order.
Previous Decisions
The Assistant Controller of Patents passed an order on September 12, 2006, deeming the application abandoned under Section 21(1) of the Patents Act, 1970.
Issues
Whether the order of deemed abandonment under Section 21(1) of the Patents Act, 1970 was valid when the petitioner was not given an adequate opportunity of hearing and the order lacked reasons.
Submissions/Arguments
The petitioner argued that the objections raised were vague and that they were not given a proper hearing before the adverse order was passed.
The respondents contended that the application was rightly deemed abandoned as the petitioner failed to meet the requirements within the prescribed time.
Ratio Decidendi
The principles of natural justice require that before an adverse order is passed, the applicant must be given a fair hearing and the order must contain reasons. The impugned order violated these principles and was therefore set aside.
Judgment Excerpts
The petitioner received an order dated September, 12, 2006 from respondent No.3 informing that the said application was deemed to have been abandoned under Section 21(1) of The Patents Act, 1970...
According to the petitioner the objection as raised by the respondent No.3 are vague and did not indicate as to how the claims do not define any invention...
Procedural History
The petitioner filed a patent application on October 16, 2002. After examination and responses, the Assistant Controller of Patents issued an order on September 12, 2006, deeming the application abandoned. The petitioner then filed a writ petition in the High Court challenging that order.
Acts & Sections
- The Patents Act, 1970: Section 21(1)
