Delhi High Court
Sonya Kapur vs Controller General Of Patent, ... on 12 December, 2022
Neutral Citation Number : 2022/DHC/005502
$~15(Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)-IPD 59/2021 & CM 14/2021
SONYA KAPUR ..... Petitioner
Through: M. Sataroop Das and Mr. Ashish
Ranjan, Advs.
versus
CONTROLLER GENERAL OF PATENT, DESIGNS AND
TRADMARK AND ORS ..... Respondents
Through: Mr. Srish Kumar Mishra, Adv. for
R1
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT( O R A L)
% 12.12.2022
1. As per the orders passed by the learned Joint Registrar in the
present case, service already stands affected on all the respondents.
2. Despite that, Respondent 1 alone is represented. Respondents 2
and 3 are unrepresented. They have remained absent before the learned
Joint Registrar as well. Today, the matter was called out twice. They
continue to remain absent.
3. As such, Respondents 2 and 3 do not appear to be serious in
contesting the present proceedings. The Court, therefore, proceeds in
their absence.
4. This petition under Article 226 of the Constitution of India assails
Signature Not Verified
Digitally Signed
Signing Date:13.12.2022
13:32:21
Neutral Citation Number : 2022/DHC/005502
order dated 31st March 2021, 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.
5. No reply to this petition has been filed by any of the respondents
including Respondent 1. However, Mr. Srish Kumar Mishra, learned
Counsel for Respondent 1 submits that, though a pre-grant opposition
was filed by the petitioner, opposing the grant of Patent No. 363697, the
opposition was not filed in the proper format and following the proper
procedure, as a result of which it could not be considered. He submits, on
instructions, that he has no objection to the impugned order being set
aside and the matter being remanded to the Patent Office for re-
consideration, after taking into account the pre-grant opposition filed by
the petitioner.
6. 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.
7. 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, I am 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.
Signature Not Verified
Digitally Signed
Signing Date:13.12.2022
13:32:21
Neutral Citation Number : 2022/DHC/005502
8. Accordingly, the impugned order dated 31st March 2021 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.
9. Both sides would be given an opportunity of hearing before any
view is taken in the matter.
10. As Respondents 2 and 3 have been absent in today's proceedings,
let a copy of this order be communicated by the Registry by email as well
as speed post to Respondents 2 and 3.
11. 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.
12. The petition is allowed in the aforesaid terms with no order as to
costs.
C.HARI SHANKAR, J
DECEMBER 12, 2022/AR
Signature Not Verified
Digitally Signed
Signing Date:13.12.2022
13:32:21
