Case Note & Summary
The Union of India appealed against an order of a single judge of the Karnataka High Court in W.P.No.33170/2004 dated 03.12.2007. The single judge had held that the period of a patent granted to Dr. Ravindranath Pradhan (the respondent) should be reckoned from 23.02.2001, the date of grant, and not from 19.06.1992, the date of application, as ordered by the Controller of Patents & Designs. The respondent had filed a patent application under Section 7 of the Patents Act, 1970 on 19.06.1992 for a process of preparing slow burning coloured cigarettes. The application was examined and eventually granted on 23.02.2001. The Controller had directed that the patent term would run from the date of application. The respondent challenged this before the single judge, who allowed the petition. The Union of India appealed. The Division Bench, comprising Justice N. Kumar and Justice V. Suri Appa Rao, dismissed the appeal, affirming the single judge's order. The court held that under Section 53 of the Patents Act, 1970, the term of a patent is 20 years from the date of filing, but the patent rights commence only from the date of grant. Therefore, for the purpose of enforcement and calculation of the period during which the patentee can exercise rights, the relevant date is the date of grant. The court reasoned that the patentee cannot enforce rights before the grant, and thus the period of the patent for practical purposes runs from the date of grant. The appeal was dismissed with no order as to costs.
Headnote
A) Patents Act - Term of Patent - Section 53 - Date of Grant - The dispute pertained to whether the patent term should run from the date of application (19.06.1992) or from the date of grant (23.02.2001). The single judge held that the period of patent is to be reckoned from 23.02.2001, the date of grant, and not from 19.06.1992 as ordered by the Controller. The Division Bench upheld this view, relying on Section 53 of the Patents Act, 1970, which provides that the term of a patent is 20 years from the date of filing, but the patent rights commence from the date of grant. Held that the patent term runs from the date of grant for the purpose of enforcement, though the term is calculated from the date of filing. (Paras 1-3)
Issue of Consideration
Whether the period of a patent is to be reckoned from the date of filing of the application or from the date of grant of the patent under the Patents Act, 1970.
Final Decision
The Division Bench dismissed the appeal, affirming the single judge's order that the period of patent is to be reckoned from 23.02.2001, the date of grant, and not from 19.06.1992, the date of application.
Law Points
- Patent term calculation
- Date of grant vs. date of application
- Section 53 Patents Act 1970
- Section 7 Patents Act 1970
Case Details
2013 LawText (KAR) (08) 2
Writ Appeal No. 109 of 2008 (GM-RES)
N. Kumar, V. Suri Appa Rao
Sri. N. Devdas, Sr. Counsel for Sri. Shivaprabhu S. Hiremath (for appellants); Sri. B C Seetharama Rao (for respondent)
Union of India, Ministry of Law, Justice & Company Affairs (Legislative Department), New Delhi; The Controller of Patents & Designs, Government of India, Kolkata; The Assistant Controller of Patents & Designs, Patent Office Branch, Chennai
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Nature of Litigation
Appeal against order of single judge in writ petition regarding calculation of patent term.
Remedy Sought
The appellants (Union of India and patent authorities) sought to set aside the single judge's order which held that the patent period should be reckoned from the date of grant (23.02.2001) instead of the date of application (19.06.1992).
Filing Reason
The respondent filed a patent application on 19.06.1992 under Section 7 of the Patents Act, 1970. The patent was granted on 23.02.2001. The Controller ordered the patent term to run from the date of application. The respondent challenged this before the single judge, who allowed the petition. The Union of India appealed.
Previous Decisions
The single judge in W.P.No.33170/2004 dated 03.12.2007 held that the period of patent is to be reckoned from 23.02.2001 and not from 19.06.1992.
Issues
Whether the period of a patent is to be reckoned from the date of filing of the application or from the date of grant of the patent under the Patents Act, 1970.
Submissions/Arguments
The appellants argued that the patent term should run from the date of application as per the Act.
The respondent contended that the patent rights commence only from the date of grant, and thus the term should be reckoned from that date.
Ratio Decidendi
Under Section 53 of the Patents Act, 1970, the term of a patent is 20 years from the date of filing, but the patent rights commence only from the date of grant. Therefore, for the purpose of enforcement and calculation of the period during which the patentee can exercise rights, the relevant date is the date of grant.
Judgment Excerpts
The learned single Judge who has held that the period of Patent is to be reckoned from 23.02.2001 and not from 19.06.1992 as ordered by the Controller of Patents & Designs, Government of India.
The petitioner filed a patent application for grant of Patent under Section 7 of the Patent Act, 1970 on 19.06.1992.
Procedural History
The respondent filed a patent application on 19.06.1992. The patent was granted on 23.02.2001. The Controller ordered the patent term to run from the date of application. The respondent filed W.P.No.33170/2004 before the single judge, who allowed the petition on 03.12.2007, holding that the patent period should be reckoned from the date of grant. The Union of India appealed to the Division Bench in Writ Appeal No. 109 of 2008, which was dismissed on 29.08.2013.
Acts & Sections
- Patents Act, 1970: Section 7, Section 53
- Karnataka High Court Act: Section 4
