JUDGMENT :

(Through Video Conferencing)

NITIN JAMDAR, J. :— Rule. Rule made returnable forthwith. Respondents waive service. Taken up for hearing by consent of the parties.

2. The Intellectual Property Appellate Board allowed the appeal filed by respondent No. 4-Pfizer Products Inc and set aside the order passed by the Controller of Patent and Designs refusing to grant the patent as applied for to respondent No. 4. The Appellate Board directed the Controller to issue patent to respondent No. 4-Pfizer. The petitioner has filed this petition making a grievance that the order was passed without giving an opportunity to the petitioner of being heard regarding his pre-grant opposition.

3. A brief overview of the statutory scheme governing the pre-grant opposition under the patent law would place the facts of the case and the arguments in a better context.

4. The Patent Act was enacted in the year 1970 to amend the law relating to patents in India. The earlier law was enacted in the year 1911, and there were substantial changes in the political and economic conditions of the country, and therefore a comprehensive law was brought in. The Act has undergone amendments in the year 2002 and 2005. Chapter I of the Act defines the terms in the Act. Patent is defined under the Act as patent for any invention granted under the Act. The patent generally is a right, an intellectual property, related to inventions. By grant of a patent, the Government for a specified period gives exclusive right to the patentee. The authorities under the Act are the Controller General of Patent, Design and Trade Marks and the Appellate Board. Controller General appointed under section 3(1) of the Trade Marks Act, 1999 is the Controller of Patent for this Act. The office of the Controller is known as the Patent Office. Under section 77 of the Act, the Controller has powers of the Civil Court such as enforcing the attendance of witnesses, discovery and production of documents, reviewing decisions and setting aside ex parte order. The Controller has powers to receive evidence, and section 18 confers certain discretionary powers on the Controller. Section 116 of the Act states that the Appellate Board established under section 83 of the Trade Marks Act to be the Appellate Board to exercise powers and functions of the Appellate Authority under the Act. Appeals to the Appellate Board are provided under section 117-A of the Act.

5.1 Chapter IV deals with the publication and examination of applications for patents. The application for patent is published under section 11-A of the Act. Sub-section (1) states that save as otherwise provided, no application for patent shall ordinarily be open to the public for such period as prescribed. The applicant may, in the prescribed manner, request the Controller to publish the application at any time before the expiry of the period prescribed under sub-section (1) and subject to the provisions of sub-section (3), the Controller shall publish such application as soon as possible. The publication of every application under this section shall include the particulars of the date of application, number of application, name and address of the applicant identifying the application and an abstract. The applicant is not entitled to institute any proceedings for infringement until the patent has been granted. Section 11-B regulates the requests for an examination of the patent application. The request for examination is to be made in the prescribed manner within the prescribed period. Under section 12, when a request for examination is made regarding an application for a patent the Controller calls for a report from an examiner as to whether the application and the specification and other documents relating thereto are in accordance with the requirements of the Act and the Rules made thereunder; whether there is any lawful ground of objection to the grant of the patent under the Act in pursuance of the application and the result of investigations