@JUDGMENTTAG-ORDER
1. These writ petitions arise out of the common order dated 9.3.2012, passed by the fourth respondent herein, viz. Intellectual Property Appellate Board, Chennai 18. The writ petitioner is the third respondent in the appeal filed by the first respondent herein u/s 117A of the Patents Act, 1970, before the fourth respondent and pending disposal of the appeal, the first respondent herein filed Company Petition No. 175/2008 connected with Company Application No. 184/2008, on the file of the High Court of Judicature at Bombay, praying for sanctioning the scheme of arrangement entered into between them and M/s. ACG Pharmapack Private Limited. Similarly, Company Petition No. 176/2008 was also filed for similar relief and both the petitions were ordered by the High Court of Bombay on 2.5.2008, approving the scheme of arrangement.
2. Thereafter, the first respondent herein filed M.P. No. 76/2011, on the file of the fourth respondent/Appellate Board, praying for substitution of appellant''s name in the appeal cause title as well as amendment in the memo of parties. The writ petitioner, who has been arrayed as third respondent in the appeal, has filed its counter opposing the said petition and also filed an independent petition in M.P. No. 15/2012 for dismissal of the main appeal itself, on the ground that the present appellant is not legally entitled to proceed with the appeal as its rights have been transferred to Associated Capsules Private Limited.
3. All the petitions along with M.P. No. 14/2012 were taken up together for hearing by the fourth respondent/Appellate Board during its Circuit Sitting at Mumbai and by a common order dated 9.3.2012, it allowed M.P. No. 76/2011 subject to the payment of Rs. 3,000/- as costs, with a direction to carry out the amendments within three weeks from the date of receipt of copy of that order and consequent upon the said order, M.P. No. 15/2012 was dismissed and so also M.P. No. 14/2012, stating that the matter shall be listed and heard in the Circuit Sitting at Mumbai.
4. The writ petitioner, who was arrayed as third respondent in M.P. No. 76/2011, in its capacity as petitioner in M.P. No. 15/2012, on the file of the fourth respondent, filed W.P. Nos. 14564 and 14565/2012 to quash the said common order.
5. The facts in brief, for the disposal of these writ petitions, are as follows:
(a) The writ petitioner obtained patent in No. 262//MUM/2004 on 3.3.2004, in respect of the invention relating to metallized packaging films for use in the packaging of food and pharmaceutical products and the said invention relates to a multi layer film having high to medium moisture barrier property.
(b) The first respondent in these writ petitions, filed an application u/s 25(2) of the Patents act, 1970, making post grant opposition before the Assistant Controller of Patents and Designs at Bombay. The original authority viz. The Assistant Controller of Patents and Designs, vide order dated 12.12.2007, has dismissed the post grant opposition raised by the first respondent in these writ petitions, and challenging the vires of the same, the first respondent herein filed an appeal u/s 117A of the Patents Act before the Intellectual Property Appellate Board at Chennai.
(c) Pendency of the appeal, Company Petition Nos. 175 and 176/2008 were filed on the file of the High Court of Bombay, praying for sanction of scheme of arrangement, stating among other things, that the Board of Directors of the first respondent herein formed an opinion that the transfer and vesting of the Rigid Packaging Films Business of ACPL into ACG Pharmapack Pvt. Ltd., (ACGPPL) by way of demerger, is in the interest of shareholders, creditors and employees of the first respondent. The Board of Directors of the first respondent company also resolved in their meeting dated 16.11.2007, to approve the same and subject to the directions and sanctions of the High Court of Bombay as may be required under law and subject to such permission of the Central Government and other authorities that may be necessary. The High Court of Bombay after complying with the procedural formalities, vide order dated 2.5.2008, granted sanction under Sections 391 to 394 of the Companies Act, 1956, to the scheme of amalgamation between the first respondent herein and ACG Pharmapack Private limited.
(d) The first respondent herein after the above said order passed by the High Court of Bombay, filed M.P. No. 76/2011, on the file of the fourth respondent/Appellate Board, praying for leave to amend the name and address of the appellant in the appeal cause title by substituting/amending to read as ACG Pharmapack Pvt. Ltd., and also sought further leave to amend the memo of parties in the appeal.
(e) In the affidavit filed in support of the said petition, it is averred among other things, that pursuant to the order passed by the High Court of Bombay on 2.5.2008, in C.P. Nos. 175 and 176/2008, the business of the first respondent herein has been demerged and transferred to M/s. ACG Pharmapack Pvt. Ltd., and consequently, all the assets, properties, rights and liabilities in respect of the Rigid Packaging Films business, that were in their name, are taken over/stood assigned, transferred and vested by/with ACG Pharmapack Pvt. Ltd. It is further averred that since there is no specific provision in the Intellectual Property Appellate Board (Patents Procedure) Rules, 2003, for according change/amendment in the memo of parties, petition in M.P. No. 76/2011 is filed seeking amendment of the name of the appellant in the appeal to be read as ACG Pharmapack Pvt. Ltd. Mumbai 21.
(f) The said petition was opposed by the writ petitioner herein, who has been arrayed as third respondent therein, contending among other things, that the person, who verified M.P. No. 76/2001, is working as the Deputy General Manager - Legal (Corporate) for the companies in ACG Worldwide, which includes Associated Capsules Pvt. Ltd.,/appellant, and is presently holding the Power of Attorney for both Associated Capsules Pvt. Ltd., and ACG Pharmapack Pvt. Ltd., and therefore, it is wrong to suggest that the business of Associated Capsules Pvt. Ltd., does not exist and in view of the false statement, the miscellaneous petition deserves to be dismissed.
(g) The writ petitioner also filed M.P. No. 15/2012 before the fourth respondent, stating that it filed a civil suit for injunction and rendition of accounts, against the first respondent herein/appellant before the Court of Additional District Judge at Delhi and the same is pending and during the pendency of the suit, an application under Order 22 Rule 10 read with Section 151 of C.P.C. was filed praying for substitution of Associated Capsules Pvt. Ltd., in the said suit and it is pending and in view of the demerger, the business does not exist in favour of the first respondent in the writ petition and consequently, the first respondent is not entitled to proceed with the appeal.
(h) Before the fourth respondent, the writ petitioner also filed M.P. No. 14/2012 praying that all further hearings in the appeal pending before the fourth respondent and connected miscellaneous petitions are to be held at Mumbai instead of New Delhi or any other place and the miscellaneous petitions should be taken up for hearing first and disposed of before hearing the main appeal.
(i) The fourth respondent/Appellate Board had taken up all the miscellaneous petitions together at its Circuit Sitting at Mumbai and passed the common order No. 49/2012 on 9.3.2012.
(j) Before the fourth respondent, the writ petitioner herein made a submission that the petitioner therein/first respondent herein ceased to be a person interested under the provisions of Section 25(2) read with 2(1)(t) of the Patents Act.
(k) The fourth respondent after taking into consideration the order dated 2.5.2008, passed by the High Court of Bombay in C.P. Nos. 175 and 176/2008, found that from the bare reading of Clause No. 8.1 of the above said Company Petitions, it is clear that all pending legal and other proceedings by or against the Demerged Company - first respondent herein, shall be continued or enforced by or against ACG Pharmapack Pvt. Ltd., in the manner as would have been continued and enforced by or against the first respondent company. The fourth respondent further found that there is no material change except the change in the name and address of the demerger of the first respondent with ACG Pharmapack Pvt. Ltd., and citing the said reasons, allowed M.P. No. 76/2011 filed by the first respondent herein, with costs of Rs. 3,000/- and also with a further direction to carry out the necessary amendment within three weeks from the date of receipt of copy of that order and consequent upon the order in allowing M.P. No. 76/2011, dismissed M.P. No. 15/2012 filed by the writ petitioner. Insofar as M.P. No. 14/2012, it was also dismissed stating that the appeal will be listed and heard in the Circuit sitting at Mumbai.
(l) The writ petitioner/first respondent in M.P. No. 76/2011 and petitioner in M.P. No. 15/2012, on the file of the fourth respondent/Appellate Board, aggrieved by the said common order, had filed these writ petitions.
6. Common counter affidavit has been filed by the first respondent reiterating the same stand taken by them before the fourth respondent/Appellate Board.
7. Mr. S.P. Chockalingam, learned Counsel appearing for the writ petitioner, has invited the attention of this Court to subsection 2 of Section 25 of the Patents Act, 1970, and would submit that the first respondent herein cannot be termed as a person interested and therefore, the petition filed by him in M.P. No. 76/2011, on the face of it, is not at all maintainable learned Counsel appearing for the writ petitioner, in support of his submissions, has also placed reliance upon a decision reported in (1959) REPORTS OF PATENT, DESIGN AND TRADE MARK CASES 66 (IN THE MATTER OF BAMFORD''S APPLICATION FOR A PATENT AND OF THE BADGER MACHINE COY.''S OPPOSITION THERETO), wherein while interpreting similar provisions, the Assistant Comptroller of United Kingdom held that the opponent is the person who gave notice of opposition, and not broadly the possessor, for the time being, of the interest on which the opposition was founded. It has been further observed that it is not to say, of course, that the prosecution of an opposition cannot be continued by the personal representative of a deceased person or by a company which has changed its name or constitution. It has been further held that as per Section 14 of the Patents Act, 1949, it is intended to limit, opposition proceedings to persons who possess the necessary interest in the period laid down in the section, and excludes a person who only acquires such interest subsequently, even if it is acquired from a person who had it and used it at the time for lodging an opposition. It has been further observed that admission of the principle that a person may oppose on the strength of an interest acquired long after the statutory period, would open the door to possible abuses such as the maintenance of a vexatious opposition by a wealthy assignee and more importantly, the principle might further complicate and prolong opposition proceedings, and place a further obstacle in the path of an inventor seeking patent protection.
8. Learned Counsel appearing for the petitioner, placing heavy reliance upon the said decision, further contended that an inventor is entitled to exploit the patent only for twenty years and the first respondent has no locus standi to file an application for substitution/amendment of the cause title or relevant portion in the appeal petition and admittedly, the Resulting Company viz. ACG Pharmapack Pvt. Ltd., has not filed any application and the said legal aspect has been completely overlooked by the fourth respondent/Appellate Board and hence, prays for quashment of the impugned common order.
9. Per contra, Mr. A. Ramesh Kumar, learned Counsel appearing for the first respondent, submitted that since the impugned common order dated 9.3.2012, in M.P. No. 76/2011 and M.P. No. 15/2012, was passed by the fourth respondent/Appellate Board at its circuit Sitting at Mumbai, the writ petitioner cannot maintain the writ petitions before this Court.
10. On merits of the writ petitions, it is contended by the learned Counsel appearing for the first respondent, that the fourth respondent/Appellate Board has rightly taken into consideration the common order dated 2.5.2008, passed by the High Court of Bombay in C.P. Nos. 175 and 176/2008, and decided the petitions. Learned Counsel appearing for the first respondent, has also invited the attention of this Court to Rule 28 of Intellectual Property Appellate Board (Patents Procedure) Rules, 2010, and would submit that as per the said Rule, on the death of a party by devolution on the legal representative of the deceased or by amalgamation, merger, assignment, acquisition, transmission or by operation of law if a new party becomes entitled for continuation of the proceedings, the proceeding shall be continued subject to filing a request in writing along with evidence in support thereof and therefore, the first respondent is entitled to file the said petition in M.P. No. 76/2011 before the fourth respondent and hence, preys for dismissal of these writ, petitions.
11. This Court has carefully considered the rival submissions and also perused the materials available on record.
12. Since the learned Counsel appearing for the first respondent, has raised a preliminary objection as to the territorial jurisdiction of this Court to entertain these writ petitions, this Court has taken up the said question. From the materials placed, it is found that M.P. No. 76/2011 was filed before the Deputy Registrar of the fourth respondent/Appellate Board at Chennai and the said petition was taken up for hearing at Mumbai in the course of its Circuit Sitting and common orders were pronounced by the fourth respondent at Chennai on 9.3.2012. In the light of the above said factual position, this Court is of the view that major part of the cause of action arose within the jurisdiction of this Court and therefore, the present writ petitions can be adjudicated by this Court.
13. On merits of the writ petitions, it is useful and relevant to extract the following Clauses in the Company Petition Nos. 175 and 176/2008, on the file of the High Court of Bombay:
6. TRANSFER AND VESTING OF DEMERGED UNDERTAKING
6.1 Upon the Scheme becoming effective the demerged undertakings with effect from the Appointed Date, shall pursuant to the provisions of Sections 391 to 394 and all other applicable provisions of law for the time being in force, without any further act or deed, stand transferred as a going concern to Resulting Company and shall consequently vest for all the estate and interest of Demerged Company therein, subject however, to all charges, liens, lis pendens, mortgages and encumbrances, if any, affecting the same or any part thereof and arising out of the liabilities which shall also stand transferred to and vested in Resulting Company, The transfer and vesting shall be effected as follows:-
....
6.5 With effect from the Appointed Date and upon the Scheme becoming effective, all permits, quotas, rights, entitlements, licenses including those relating to tenancies, trademarks, patents, copy rights, privileges, powers, facilities of every kind and description of whatsoever nature in relation to the Demerged Undertaking to the benefit of which the Demerged Undertaking may be eligible and which are subsisting or having effect immediately before the Appointed Date, shall be and remain in full force and effect in favour of, or against. Resulting Company as the case may be, and may be enforced fully and effectually as if, instead of Demerged Company, Resulting Company had been a beneficiary or obligee thereto.
....
8. LEGAL PROCEEDINGS
8.1 Upon the Scheme becoming effective, all legal and other proceedings, including before any statutory or quasi-judicial authority or tribunal of whatsoever nature by or against the Demerged Company pending and/or arising at the Appointed Date and relating to the Demerged Undertaking, shall be continued and enforced by or against the Regulating Company only, to the exclusion of the Demerged Company in the manner and to the same extent as would have been continued and enforced by or against the Demerged Company. On and from the Effective Date, the Resulting Company shall and may, if required, initiate any legal proceedings in relation to the Demerged Undertaking.
8.2 In the event that the legal proceedings referred to above, require the Demerged Company and the Resulting Company, to be jointly treated as parties thereto, the Resulting Company shall be added as party to such proceedings end shall prosecute or defend such proceedings in co-operation with the Demerged Company. In the event of any difference or difficulty in determining whether any specific legal or other proceeding relates to the Demerged Undertaking or not, the decision of the Board of Directors of the Demerged Company as to whether such proceeding relates to the Demerged Undertaking or not, shall be conclusive evidence of the relationship with Demerged Undertaking.
8.3 After the Appointed Date, in case the proceedings referred to in Sub-Clause 8.1 cannot be transferred to any reason, the Demerged Company shall defend the same at the cost of the Resulting Company, and the Resulting Company shall reimburse, indemnify and hold harmless the Demerged Company against all liabilities and obligations incurred by the Demerged Company in respect thereof.
14. The primordial submission made by the learned Counsel appearing for the writ petitioner, is that the first respondent ceased to be a person interested in terms of the provisions of Section 25(2) read with 2(1)(t) of the Patents Act and therefore, M.P. No. 76/2011 should have been dismissed by the fourth respondent/Appellate Board in limini. Normally, the locus standi with regard to the person interested to prosecute the proceedings, is to be decided as a preliminary point. However, the materials placed before this Court, would disclose that the fourth respondent/Appellate Board has proceeded to allow the petition by placing reliance upon the order dated 2.5.2008, made in C.P. Nos. 175 and 176/2008, by the High Court of Bombay. The post grant opposition filed by the first respondent herein, was dismissed by the original authority and challenging the legality of the same, the appeal is pending before the fourth respondent and during the enquiry, it is open to the first respondent herein to substantiate that he has some real interest, to the satisfaction of the fourth respondent of course, the burden lies heavily on the first respondent herein/appellant before the fourth respondent to establish that he is having locus standi or a person interested. Since the appeal is pending before the fourth respondent/Intellectual Property Appellate Tribunal and is seized of the matter, it is always open to the writ petitioner, who has been arrayed as third respondent therein, to raise the said issue.
15. In view of the Clauses pointed out above, which have been sanctioned and approved by the High Court of Bombay in C.P. Nos. 175 and 176/2008, this Court is of the view that the impugned order passed by the fourth respondent/Appellate Board, does not suffer on account of any infirmity. However, this Court makes it clear that it is still open to the writ petitioner herein to raise objections in terms of Section 25(2) read with 2(1)(t) of the Patents Act and as and when the said objection is raised, this Court requests the Intellectual Property Appellate Board to adjudicate the said issue also. In the result, these writ petitions are dismissed subject to the above observations. However, in the circumstances of the case, there shall be no order as to costs. Consequently, connected MPs are also dismissed.
