C. Hari Shankar, J
1. This is yet another case in which the manner in which the impugned order dated 8th October 2020, passed by the Assistant Controller of Patents and Designs, shocks the conscience of the court.
2. Application No. 8285/DELNP/2007 was filed by the appellant on 26th October 2007 for grant of a patent in respect of “Bone Fixation Apparatus”.
3. Consequent to filing of the application, First Examination Report (FER) was issued by the Office of the Controller of Patents on 30th November 2015. The appellant filed its reply to the FER on 1st July 2016.
4. Consequent thereto, notice of hearing was issued by the Assistant Controller General of Patents (ACGP) on 14th November 2019, and hearing was granted to the appellant on 17th December 2019, whereafter the appellant filed written submissions on 31st December 2019.
5. The impugned order has come to be passed, by the ACGP on 8th October 2020. To appreciate how the impugned order has been written and passed, it would be appropriate that a screenshot of the order is provided:
6. Clearly, instead of taking the trouble of typing out the order, the ACGP has merely cut and paste paragraphs from documents.
7. Though such cutting and pasting is itself disquieting, the Court would not have taken serious note thereof, had the ACGP condescended to supplement the cut and pasted paragraphs with his own reasoning, displaying some minimal application of mind.
8. Sadly, that is lacking.
9. Mr. Vineet Rohilla, learned Counsel for the appellant points out that the objections contained in the FER were reproduced, verbatim, in the notice of hearing dated 14th November 2019 and again stand reproduced, verbatim, in paras 2 and 6 of the impugned order. There has been no consideration, whatsoever, of the reply filed by the appellant either in response to the FER or consequent to the notice of hearing issued by the ACGP.
10. If one were to de-construct the impugned order, the following position emerges:
(i) Paras 1 and 2 are directly cut and pasted from the FER dated 30th November 2015. It may be noted that the appellant’s application has come to be rejected on the basis of objections contained in para 2 i.e. for want of inventive step vis-a-vis prior art D1 and D2, and not on the basis of the objection contained in para 1.
(ii) Para 3 is a formal paragraph noting the fact that the hearing was conducted and written submissions were filed.
(iii) Para 4 first cuts and pastes the claim contained in the appellant’s application and, thereafter, cuts and pastes the response filed by the appellant to the FER.
(iv) Para 5 is incomprehensible. It starts by saying that the ACGP did not find the submission of the appellant persuasive in view of what is supposed to be following thereafter. Thereafter, however, the ACGP has merely cut and pasted Claim 1 from the appellant’s application.
(v) Ironically, para 6 of the impugned order starts with the recital that the oral argument and written submission of the appellant were carefully considered. Thereafter, the impugned order declares, without prelude or preface, that the claim of the appellant did not comply with Section 2(1)(j) of the Patents Act. Why, is left for anybody to guess. The paragraph thereafter once again cuts and pastes the objection contained in the FER. The objection, therefore, has been cut and pasted twice, firstly in
2. Definitions and interpretation. –
(1) In this Act, unless the context otherwise requires, -
(j) “invention” means a new product or process involving an inventive step and capable of industrial application;
(vi) The impugned order, thereafter, again states that the claim of the appellant was deficient in respect of Section 2(1)(j) of the Patents Act.
11. Thereafter, somewhat strangely, the impugned order states that the appellant’s application was also liable to be rejected under Section 10(4) and Section 59 of the Patents Act, neither of which provision was ever raised as an objection to the appellant either in the FER or in the hearing notice.
12. The impugned order, thereafter, proceeds to reject the appellant’s application for grant of patent.
13. This Court is seriously disturbed at the impugned order. The order is nothing less than a total mockery of the functions which are vested in the quasi-judicial authorities in the office of the Controller General of Patents.
14. This Court has personally interacted with the learned Controller General of Patents, and is aware that he has his heart in the right place, and is sincerely interested in ensuring that the patent office functions properly. “The best laid schemes of mice and men”, as the poet Robert Burns however lamented, “gang aft agley” [In the poet’s immortal “To A Mouse, (On Turning up in her Nest with The Plough), November 1785”. “Gang aft agley” is the Scottish equivalent of “go often awry”.], and, if the lower functionaries in his office persist in passing orders such as the one before me, the best intentions of the learned Controller General will fail to bear fruit.
15. The Court, therefore, sincerely requests the learned Controller General of Patents to advise the functionaries in his office, discharging quasi-judicial functions such as grant or refusal of patent applications, to make every effort to see that such orders are not passed, as they do discredit not only to the duty vested in the officer passing the order, but in the ultimate eventuate, would also reflect on the functioning of the office of the learned Controller General of Patents itself.
16. Mr. Harish Vaidyanathan, learned Central Government Standing Counsel appearing for the Controller General of Patents, with customary fairness, agrees to the matter being remanded for a fresh consideration.
17. This Court notes the fact that the application for grant of patent was filed as far back as in 2007. We are already in 2023. A patent, once granted, has a life of only 20 years. The period is counted not from the date of grant of the patent but from the date of the application. 13 of the said period of 20 years, therefore, have already lapsed. Even if, today, the appellant’s applications were to be granted, the life of the patent would only be a residual period of 3 years.
18. If inventors, who seek to invent patents, are going to suffer such treatment, it would ultimately disincentivise persons from exercising their inventive faculties and coming with new and innovative technologies which would ultimately be deleterious to the national interest as well.
19. It would be well if adjudicating authorities in the office of the Controller General of Patents keep these realities in mind. To the knowledge of this Bench, this is the fourth case where such an order has come up before this Court. If the passing of such orders persists, the Court may be constrained to take more drastic steps, which might in the end result impact the officer who passes the order personally. For the present, however, the Court is desisting from doing so.
20. Needless to say, in the aforesaid facts and circumstances, the impugned order dated 8th October 2020 is quashed and set aside. It is directed that the de novo proceeding shall conclude and the decision be communicated to the appellant within the time period of three months.
21. Application No. 8285/DELNP/2007 is remanded for a fresh consideration. The learned Controller General of Patents is requested to assign the matter to an officer other than the officer who has passed the impugned order.
22. The learned Controller General of Patents is also requested to depute the officer who has passed the impugned order Mr. Ashlesh Mourya, ACGP to undergo a course in passing of judicial orders, to be conducted by the Delhi Judicial Academy.
23. Let a copy of this order be also marked to the Delhi Judicial Academy for compliance.
24. This appeal stands allowed in the aforesaid terms.
