M.P. NO. 2/2014 in OA/13/2010/PT/CH04 Apr 2014. Case: Hindustan Unilever Limited Vs The Controller of Patents & Designs, The Deputy Controller of Patents & Designs and Forbes Aquatech Ltd.. West Bengal State Consumer Forum Intellectual Propery Appellate Board Cases
| Case Number | M.P. NO. 2/2014 in OA/13/2010/PT/CH04 Apr 2014 |
| Counsel | For Appellant: Shri P.S. Raman, Senior Advocate, Shri S. Majumdar and Shri Dominc Alwaris and For Respondents: Shri K. Duraiswamy, Sr. Advocate, M.K. Chakraborty and Shri N. Ramasamy |
| Judges | K.N. Basha, J. (Chairman) and D.P.S. Parmar, Member (T) |
| Issue | Patents Act, 1970 (39 Of 1970) - Sections 117-A, 117A, 137, 25, 25(2), 25(3)(a), 25(4) |
| Judgement Date | April 04, 2014 |
| Court | West Bengal State Consumer Forum Intellectual Propery Appellate Board Cases |
Order:
K.N. Basha, J. (Chairman), (Circuit Sitting At Mumbai)
1. The petitioner who is the respondent No. 3 in the appeal preferred this Miscellaneous Petition raising a preliminary objection questioning the maintainability of the appeal preferred by the appellant/respondent No. 3 herein.
2. It is seen that at the time of preferring the appeal this Board granted an order of stay in Miscellaneous Petitioner No. 70/2010 seeking for the relief of stay and in Miscellaneous Petition No. 71/2010 seeking for the relief of urgent hearing of the matter on 07.12.2011. This Board observed in that order that the impugned order was stayed by the order dated 07.12.2011 in the absence of the respondent who in spite of knowing that the date of hearing has chosen not to be present before the Board. Thereafter, the respondent No. 3/petitioner herein preferred a Miscellaneous Petition No. 46/2012 for vacating the stay order dated 07.12.2011 and the said petition is pending as on date. Meanwhile, the Respondent No. 3/Petitioner preferred this Miscellaneous Petition No. 2/2014 raising a preliminary objection of maintainability of the appeal.
3. Mr. K. Duraisami, the learned senior counsel appearing for the petitioner/respondent No. 3 would vehemently contend that the appeal preferred by the appellant itself is not maintainable on the ground of non compliance of Section 25(2) of the Patents Act, 1970 (hereinafter referred to as Act) and on the ground of violation of mandatory provision of Rules 55A, 57, 129 and 137 of the Patent Rules, 2003 (hereinafter referred to as Rules).
4. It is contended that as per provision of the Section 25(2) of the Act, the appellant has filed the post grant opposition as per Form No. 7 without written statement and they have filed a written statement subsequently on 17.11.2005 which is in violation of Rule 57 as Form No. 7 and the written statement along with the evidence must be filed by the opponent together and copies to be sent to the Patentee simultaneously. It is contended that in view of violation of Rule 57 the post grant opposition is liable to be dismissed which was not done by the Patent Office. The learned senior counsel would point out that the said lapse was admitted by the appellant as they have stated in their letter dated 31.03.2006 sent through their counsel to the Controller of Patents that the written statement and evidence ought to have accompanied the notice of opposition as per provision under Rule 57 and therefore there has been a procedural irregularity. It is contended that similar statement was made by the appellant in the petition filed under Rule 137 praying for condoning the irregularity of procedure by exercising the discretionary powers.
5. The learned senior counsel would contend that the Assistant Controller passed an ex-parte order without affording opportunity of hearing to the petitioner/respondent No. 3 and condoned the irregularity of procedure as contemplated under Rule 57. The learned senior counsel would contend as per provision under Rule 137, the Controller may condone the irregularity in the procedure without detriment to the interest of any person and the petitioner being the patentee he would have been afforded opportunity to be heard before passing the order condoning the irregularity of procedure and regularizing the same as per order dated 21.04.2006.
6. The learned senior counsel would also place reliance on the provision under Rule 129 contemplating the opportunity of hearing to the patentee before exercising any discretionary power under the Act or the Rules which would affect the interest of the patent adversely. Therefore, it is contended that a non compliance of the said mandatory provisions in the instant case renders the entire post grant proceedings as vitiated.
7. The learned senior counsel would also point out that in a similar matter one Mr. K. Subramaniam of Coimbatore filed a post grant opposition with Form-7 without the written statement and evidence and without serving the same simultaneously to the patentee and the very same learned counsel on record appearing in this matter for appellant by writing letters dated 16.02.2009 and 17.02.2009 stating that the mandatory procedure as per Rule 57 was not complied and as such the Controller was requested not to consider the notice of opposition filed by the opponent and on that basis Assistant Controller of Patents as per order dated 29.04.2009 decline to take the notice of opposition on record in view of irregularity of the procedure. Therefore the learned senior counsel for the petitioner would submit that the learned counsel for the appellant now cannot take a different stand and as such the non-compliance of the mandatory provision as...
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