Important Point
When pre existing right of appeal continues to exist, by necessary implication the old law which created the right of appeal also exists to support the continuation of that right and hence the old right must govern the exercise and enforcement of that right.

Judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Order passed in four appeals filed by the respondents questioning correctness of Order dated 10th February, 2006 passed by a learned Single Judge of Calcutta High Court form the subject matter of challenge in this appeal. A learned Single Judge had set aside the Order dated 28.12.2004 passed by the Controller of Patents and Designs (in short the ‘Controller’) and remanded the matter to him for arriving at a fresh decision on the application of the writ petitioners for exclusive marketing right according to law that existed on 3rd May, 2002. The Controller was also asked to consider the report of the examiner dated 28.7.2000.

3.Background facts giving rise to the filing of the writ petition were as follows :

The writ petitioners filed an application for grant of patent under Section 5(2) of the Patents Act, 1970 (in short the ‘Act’) on 28th August, 1998. Subsequently, on 30th June, 2000 the writ petitioners further filed an application for grant of “Exclusive Marketing Right” (in short the `EMR’). On July 28, 2000 the examiner filed examination report as regards the claim of the writ petitioners for grant of EMR.

The Controller of Patent, however, by Order dated 3rd May, 2002 refused the prayer of the writ petitioners for EMR.

Being dissatisfied, two different writ applications were filed before the High Court being W.P.No.20469(W) of 2004 and W.P.No.20407(W) of 2004 and a learned Single Judge of the High Court set aside the Order dated 3rd May, 2002 and directed the Joint Controller of Patent to consider and give Order on the application for grant of EMR afresh keeping all points open.

Pursuant to the Order of the learned Single Jude, dated 16th December, 2004, the Controller of Patent again rejected the application filed by the writ petitioners on December 28, 2004.

On January 1, 2005 the Patent (Amendment Act), 2005 came into operation by which various amendments to the Act were made and the Chapter IV-A which provided the mode of adjudication of the claim of EMR was totally deleted. On June 9, 2005 the writ petitioners filed another writ application thereby challenging the Order dated 28th December, 2004 passed by the Controller of Patent by which the prayer for the EMR of the writ petitioners was rejected for the second time.

Challenging the correctness of Order passed by the learned Single Judge, the Controller of Patent and the Union of India filed two appeals, while two others were preferred by a third party to the proceedings who wanted to be added as party-respondent in the writ application. The appellants raised a preliminary objection as regards maintainability of the writ petition after coming into operation of amendments into the Act w.e.f. 1st January, 2005. According to the appellants before the High Court, with effect from 1st January, 2005 there was no scope for further considering the question of EMR as Chapter IVA of the Act has been deleted and in Section 78 of the Amending Act, it has been specifically made clear that all pending applications for grant of EMR filed under Chapter IV-A of the Principal Act which were pending on 1st January, 2005 should be treated to be a claim for patents covered under sub-section (2) of Section 5 of the Principal Act and such application should be deemed to be treated as a request for examination of grant of patents under sub-section (3) of Section 11(B) of the Act. The stand essentially was that there was no scope for considering any pending cases for grant of EMR after 1st January, 2005 and in any case the applications relating to grant of EMR disposed of earlier cannot be revived for consideration.

Stand of the present appellants was that on the first day of January, 2005 there was no pending application filed by the writ petitioner for grant of EMR and the transitional provision in Section 78 of the Act has no application to the facts of the case. It was pointed out that since the prayer for EMR was disposed of at a point of t