Judgment :

Leave granted.

Sugen Inc. USA and Pharmacia and Upjohn Company USA filed an application on-.8.2002 for the grant of patent. The application was recommended for grant of patent on 23.8.2007 and was finally alloted the patent No. 209251, which was published in the Patent Office Journal under Section 43(2) of the Patents Act, 1970 (for short. "the Act"). Cipla Ltd. filed an application under section 25(2) of the Act on 1.9.2008 for revocation of the said patent, before the Assistant Controller of Patent and Design (in short, "the Controller"), who vide his order dated 24th September, 2012 revoked the patent which gave rise to this litigation.

Heard Mr. Harish Salve, learned senior counsel appearing for the appellant and Mr. T.R. Andhyarujina, learned senior counsel appearing for Respondent Nos. 2 and 3 at length. Detailed arguments were addressed with regard to the correctness or otherwise of the order passed by the Controller as well as by the High Court and the consequences thereof.

We find it unnecessary to examine all those contentions since we are sending this matter back to the Controller for fresh consideration in accordance with law. The main controversy raised in the case is on the non-furnishing of the copy of the recommendation of the Statutory Board constituted under Section 25 (4) of the Act to the parties.

Chapter v of the Patents Act, 1970 (for short, "the Act") deals with the Opposition Proceedings to grant of patents. Section 25 (1) of the Act enables any person to represent by was of Opposition to the controller against the grant of patent, but before a patent has not been granted. Sub-section (2) of Section 25 enables any person interested to give notice of opposition to the Controller at any time after the grant of patent, but before the expiry of period of one year from the date of publication of grant of the patent. Clauses (a) to (k) of this sub-section are the grounds which can be taken by any person. It is specifically made clear that in sub-sections (1) and (2) of Section 25 of the Act that no other grounds are available to be taken by any person.

Section 25 (3) (b) of the Act deals with the constitution of the Opposition Board for examination and submission of its recommendations to the Controller. Clause (c) of Section 25 (3) says that every Opposition Board constituted under clause (b) shall conduct examination in accordance with such procedure as may be prescribed. Chapter VI of the Patent Rules, 2003 (for short, "the Rules") deals with Opposition proceedings to grant of patents. Rule 56 deals with the constitution of Opposition Board and its proceeding. Rule 56 is given below for easy reference:

"56. Constitution of Opposition Board and its proceeding-

(1) On receipt of notice of opposition under rule 55A, the Controller shall, by order, constitute an Opposition Board consisting of three members and nominate one of the members as the Chairman of the Board.

(2) An examiner appointed under sub-section (2) of section 73 shall be eligible to be a member of the Opposition Board.

(3) The examiner, who has dealt with the application of patent during the proceeding for grant of patent thereon shall not be eligible as member of Opposition Board as specified in sub-rule (2) for that application.

(4) The Opposition Board shall conduct the examination of the notice of opposition along with documents filed under rule 57 to 60 referred to under sub-section (3) of section 25, submit a report with reasons on each ground taken in the notice of opposition with its joint recommendation within three months from the date on which the documents were forwarded to them."

Rule 57 deals with filing of written statements of opposition and evidence. Rule 58 deals with filing of reply statement and evidence. Rule 59 deals with filing of reply evidence by opponent. Rule 60 says that no further evidence shall be delivered by either party except with the leave or directions of the Controller.

The aforesaid provisio