Dr Snehlata C Gupte v. Union of India & Ors

Order rendered by the Assistant Controller of Patents dismissing the aforesaid Oppositions and granting patents in favour of J. Mitra.

24.8.2006 Snehlata Gupte files a letter and Statement of case before Patent Office opposing the two patent application of the Respondent No.5. The timing is interesting inasmuch as the said representation is filed the very next day of the order passed by the Asst. Controller of the Patents dismissing Span"s opposition.

05.9.2006 Girish Rindani files a letter and Statement of case before Patent Office opposing the two patent application of the Respondent No.5. The timing is interesting inasmuch as the said representation is filed a few days after the passing of the order by the Asst. Controller of the Patents dismissing Span"s opposition.

¶16Mr. Singh also argued that the present appeals have been filed by the appellants at the behest of Span Diagnostics Limited (a business rival of the respondent No.5) as they are connected to each other. It is of importance to note that Dr. Snehlata Gupte runs Surat Raktadan Kendra, whose Chairman is the main promoter of Span Diagnostics. Further, she is also a member of Span Diagnostics part-time research team and Dr. Girish Rindani is a consultant for Span Diagnostics. It is imperative to state herein that there has been no denial on part of Appellants to the effect that they are not related or associated with Span Diagnostics. In fact, in the rejoinder affidavit it has been stated on behalf of the appellants that:

"…………. I further say that the same (the relationship between them and Span Diagnostics limited) has no bearing on the present case. It is immaterial for the purposes of the present writ petition whether the person

who files a pre-grant opposition is related or not related to a party who is interested in the concerned patent being granted……………………"

¶17Prima facie we agree with the aforesaid submissions of Mr. Maninder Singh. Be as it may, we are at pains to reiterate that the date on which the patent is granted cannot be the date of issuance of certificate but has to be the date on which orders are passed by the Controller. Certificate is in the nature of execution of that order and is proof of fact that the patent has been granted which is the date on which the Controller passed the order. It is the date on which the decision is taken by the Controller on file in respect of a pre-grant opposition (either rejecting or accepting the representation) which is the determining event ascertaining the date of grant of patent. The sealing of patent and entering of the same in the register are ministerial acts which follow the Controller"s act of grant of patent. The onus is on the person instituting the pre-grant opposition to be vigilant about the date of publication of the application under Section 11A of the Act and take appropriate steps for filing the representation.

¶18We find that the learned Single Judge has issued various directions. The Government has even implemented the direction relating to previous announcement of the date of pronouncement of the order. These directions would go a long way in discouraging frivolous petitions and checking misuse. We command the Patent Office to issue directions/instructions in terms of Paras 55 to 58 of the order of the learned Single Judge.

¶19Finding no merit in these appeals, we dismiss the same with cost quantified @ `25,000/- each.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE April 20, 2012 pmc

* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA No.561 of 2010, LPA No.562 of 2010, LPA No.563 of 2010 & LPA No.564 of 2010 Reserved on: February 02, 2012 % Pronounced on: April 20, 2012 1) LPA 561/2010 DR SNEHLATA C GUPTE ..... Appellant Through: Mr. Sudhir Chandra, Sr. Adv. with Mr. Sagar Chandra, Ms. Ishani Chandra, Mr. Ankit Rastogi, Advs. versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Sachin Datta, CGSC for UOI Mr. Mahinder Singh, Sr. Adv. with Ms. Pratibha M. Singh, Adv. for R5 2) LPA 562/2010 DR SNEHLATA C GUPTE ..... Appellant Through: Mr. Sudhir Chandra, Sr. Adv. with Mr. Sagar Chandra, Ms. Ishani Chandra, Mr. Ankit Rastogi, Advs. versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Sachin Datta, CGSC for UOI Mr. Mahinder Singh, Sr. Adv. with Ms. Pratibha M. Singh, Adv. for R5 3) LPA 563/2010 GIRISH J RINDANI ..... Appellant Through: Mr. Sudhir Chandra, Sr. Adv. with Mr. Sagar Chandra, Ms. Ishani Chandra, Mr. Ankit Rastogi, Advs. versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Sachin Datta, CGSC for UOI Mr. Mahinder Singh, Sr. Adv. with Ms. Pratibha M. Singh, Adv. for R5 4) LPA 564/2010 DR. SNEHLATA C. GUPTE ..... Appellant Through: Mr. Sudhir Chandra, Sr. Adv. with Mr. Sagar Chandra, Ms. Ishani Chandra, Mr. Ankit Rastogi, Advs. versus UNION OF INDIA & ORS ..... Respondents Through Mr. Sachin Datta, CGSC for UOI Mr. Mahinder Singh, Sr. Adv. with Ms. Pratibha M. Singh, Adv. for R5 CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI (ACTING CHIEF JUSTICE) 1. Since in all these appeals pure question of law arises for determination, to consider that question, facts of LPA No.561 of 2010 shall suffice as that would serve the purpose. 2. The respondent No.5, viz., J. Mitra & Co. Ltd had filed two patent applications in the Office of the Controller of Patents on 14.6.2001. Patent Specifications were published in the official gazette on 20.11.2004 in terms of Section in terms of Section 11A of the Patents Act (hereinafter referred to as "the Act"). As per provisions of Section 25 (unamended) of the Act, which held the field at that time, an opposition to the grant of patent could be filed within four months from the date of publication. Such a period could be extended by one month by the Controller on being satisfied by the reasons given for such delay. One M/s. Span Diagnostics Ltd. (SDL) filed pre-grant opposition. It was considered by the Controller and vide detailed order dated 23.8.2006, the Controller rejected this opposition. On rejection of pre-grant opposition, the Controller ordered grant of patent on the application of the respondent No.5 putting a particular condition. Since this portion of the order is bone of contention, we would like to reproduce the same hereunder: "In view of the above discussion and in consideration of the submissions of both the parties. I hereby order to grant [Patent No.194639] on Patent Applicant No.590/Del/2000 with the following condition: The Applicants shall give cross reference to the patent application no.593/Del/2000 on page 2 of the complete specification and submit the amended/retyped page(s) within a seek from the date of these order. The Opposition on Patent Application No.590/Del/2000 (194639) is disposed of in above terms. No order to cost." 3. As per the appellant, she had sent pre grant opposition by currier on 22.8.2006 which was received by the Patent Office on 24.8.2006. As on that date, Section 25 (1) of the Act stood amended by the Patents (Amendment) Act, 2005 with effect from 01.1.2005. As per the amended provision, the time for filing a pre-grant opposition stood extended till the grant of patent. According to the appellant, her pre-grant opposition received on 24.8.2006 was within time as per the Amended provision of Section 25(1) of the Act inasmuch as there was no patent granted by that time. It was her case that the patent is not granted till such time it is not sealed and entered in the Registe