IMPORTANT POINT
An appeal under Section 117A of the Patents Act is not maintainable against an order passed under Section 21(1), which deems a patent application abandoned if the applicant fails to comply with all requirements within the prescribed time.

JUDGEMENT

Firdosh P. Pooniwalla, J. - The present Petition is an Appeal under the provisions of Section 117A of the Patents Act, 1917 ('The Patents Act') impugning the Order dated 16th September 2021 passed by the Respondent. The relevant parts of the said Order read as under:

'7. I consider that the application shall be considered deemed to have been abandoned for the following reasons :

'I. The applicant has failed to comply with all of the objections in the FER. No attempt to reply to the objections on one to one basis was made.

II. The applicant may have opted for an extension in the timeline to comply with the objections under rule 24-B(6) of the Rules. The unconcerned written submission in reply to the FER is an attempt to circumvent the provision under rule 24-B(5).

III. The controller has no power to extend the timeline under rule 24-B(5), under rule 138 of the Patents Rules.

IV. I have not observed any extraordinary circumstances: national emergency, pandemic, war- like situation etc.

V. If at all, the prosecution of the instant application is allowed, it is going to circumvent the provisions under section 21(1) of the Patents Act, 1970 read with Rule 24-B(5), (6). The same will open a pandora's box and the due time-bound provisions under Rule 24-B(5), (6) will be short-circuited.

8. Technical Analysis

No further technical examination is required as the applicant has failed to comply with the requirement of section 21 (1) of the Patents Act, 1970 read with the relevant rules.

9. Decision

Given my understanding in paragraph 7, I refuse to proceed with the grant of instant application due to the following reasons:

I. The applicant has failed to coruply with all of the objections in the FER. No attempt to reply to the objections on one to one basis was made.

II. The applicant may have opted for an extension in the timeline to comply with the objections under rule 24-B(6) of the Rules. The unconcerned written submission in reply to the FER is an attempt to circumvent the provision under rule 24-B(5).

III. The controller has no power to extend the timeline under rule 24-B(5), under rule 138 of the Patents Rules.

IV. I have not observed any extraordinary circumstances, national emergency, pandemic, war- like situation etc.

V. If at all, the prosecution of the instant application is allowed, it is going to circumvent the provisions under section 21(1) of the Patents Act, 1970 read with Rule 24-B(5), (6). The same will open a pandora's box and the due time-bound provisions under Rule 24-B(5), (6) will be short-circuited.'

2. Mr.Bhadang, the learned counsel appearing on behalf of the Respondent, raised a preliminary objection that the present Petition is not maintainable. Mr.Bhadang pointed out the provisions of Section 117A of the Patents Act and submitted that Section 117A does not provide for an Appeal against an Order passed under Section 21(1) of the Patents Act. He submitted that, since the impugned Order was passsed under Section 21(1) of the Patents Act, the present Appeal was not maintainable.

3. In response to this preliminary objection raised by Mr.Bhadang, Mr.Kamod, the learned counsel appearing on behalf of the Petitioners, submitted that, in the present case, the FER was issued on 24th June 2019. He submitted that the Petitioners had responded to the said FER by their reply dated 24th December 2019. In the reply dated 24th December 2019, the Petitioners had responded to all the requirements under the FER. He further drew the Court's attention to a letter dated 15th September 2020 issued by the Petitioner as a follow up to the reply dated 24th December 2019. Mr.Kamod submitted that, since the Petitioners had responded to the requirements in the FER, the Petitioners could not have been said to have abandoned their application under Section 21(1) of the Patents Act. Mr.Kamod submitted that, if the Respondent found that the Application was required to be rejected as the response of the Petitioners was not satisfactory, then the Order