High Court of Delhi

Sonya Kapur vs. Controller General of Patent, Designs and Tradmark and Ors.

MANU/DE/5106/2022

12.12.2022

Intellectual Property Rights

Right to oppose an application for grant of a patent is a valuable right, and cannot be permitted to be defeated on technical considerations

Present petition under Article 226 of the Constitution of India, 1950 assails order passed by the Patent Office, whereby Patent No. 363697 has been granted to Respondent No. 3 without considering the pre-grant opposition filed by the petitioner.

The right to oppose an application for grant of a patent is statutorily conferred by Section 25 of the Patents Act, 1970. It is a valuable right, and cannot be permitted to be defeated on technical considerations. The absence of a pre-grant opposition also confers rights on the patent holder, once the patent is granted.

In that view of matter, and given the fact that it is conceded that a pre-grant opposition was, in fact, filed by the petitioner, albeit in the wrong format, present Court is of the opinion that the interests of justice would require the said pre-grant opposition to be considered before the Patent Office takes a call on the grant of patent as sought by Respondent No. 3.

Accordingly, the impugned order is quashed and set aside. The application of Respondent No. 3 for grant of Patent No. 363697 is remanded to the Patent Office for re-consideration. The Patent Office would also take into account the pre-grant opposition filed by the petitioner. It is made clear that the Patent Office shall restrict its consideration to the pre-grant opposition filed by the petitioner and shall not allow any other pre-grant opposition to be filed, to the application filed by Respondent 3 for grant of patent. Petition allowed.

Tags : Patent Grant Legality

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