Union of India
Dr. Ravindranath Pradhan
Writ Appeal No. 109 of 2008 before the Hon’ble High Court of Karnataka at Bangalore
Decided on: 29.08.2013
The respondent filed a patent application on 19.06.1992 for a process of preparing slow burning coloured cigarette. Certain objections were raised. The respondent replied to the said objections but due to strike of postal department his reply could not reach the Patent Office on time and the patent office informed him that his patent application has been deemed to be abandoned. The respondent filed a writ petition. By virtue of the writ petition the matter was remanded back to the Patent Office to consider the application filed by the respondent on merits. After several visits to Chennai, the respondent was called to re-submit his application on 23.02.2001. After, the process of acceptance and publication the patent was received on 07.03.2003. However, in the patent granted to the respondent, it was notified that the term of the patent is for 14 years from 19.06.1992.
Thus, the Respondent filed a Writ Petition before the Hon’ble High Court of Karnataka. The Learned Single Judge considered the matter as per the un-amended Act and held vide his order dated 03.12.2007 that the date has to be reckoned from the date on which the application is filed with full specifications. It is only on 23.02.2001, the date when the petitioner submitted his application with full specification and therefore, the period of Patent has to be reckoned only from that date. Thus the writ petition was allowed.
Union of India filed an appeal against the order dated 03.12.2007. The Hon’ble Court observed that the order granting the patent was passed on 07.03.2003 and the Patent (Amendment) Act, 2002 came in to force from 20.05.2003 and thus, the present case has to be decided as per the law which was in force prior to the amendment.
The Hon’ble Court relied on the un-amended Sections 43, 45 and 53 of the Patents Act, 1970 and held that Section 45 which deals with the date of patent, categorically states that subject to the other provisions contained in this Act, every patent shall be dated as of the date on which the complete specification was filed. Therefore, the date of patent shall be the date on which complete specification was filed, but not the date of incomplete specification or a provisional specification. The term of the patent shall be the number of years as mentioned in Section 53 which is calculated from the date of the patent. Therefore, in the instant case it was held that though the first application for patent was filed on 19.06.1992, the authorities treated the said application as having been abandoned. It is at their request, a second application was filed on 23.02.2001 with complete specification. Therefore, the date of patent is the day on which the second application with complete specification was filed. The Appellate Court dismissed the appeal.