IMPORTANT POINT
The court affirmed that the patent term under Section 53 begins from the application date, which is constitutionally valid and consistent with international obligations.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The petitioner has challenged the vires of Section 53 of the Patents Act, 1970 (for short, “the Patents Act”).

2. The primary ground of challenge is that as per Section 53(1), the term of every patent granted after the commencement of the Patents (Amendment) Act, 2002 and the term of every patent which has not expired and has not ceased to have effect on the date of such commencement, shall be twenty years from the date filing of the application for the patent.

3. It is argued that as per the provisions of the Patents Act, the patent confers rights on the patentee to institute litigation for infringement and have all other rights of a patentee only from the date of grant of patent. Section 11-A, introduced by the 2002 Amendment with effect from May 20, 2003, under sub-section (7) thereof, provides that on and from the date of publication of the application for patent and until the date of grant of patent, the applicant shall have the like privileges and rights as if a patent for the invention had been granted on the date of publication of the application. The proviso thereto says that the applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted.

4. The petitioner no. 1, appearing in person, submits that as the full rights conferred by a patent commence only from the grant thereof and certain limited rights are conferred on the date of publication, the stipulation in Section 53 that the term of the patent commences from the date of application of the patent is inherently contradictory to the rest of the statute.

5. It is argued that the patentee does not enjoy the rights of the patent from the date of application till its publication at all, whereas other rights apart from the right to institute proceedings for infringement are conferred between the date and publication and the grant of the patent. Hence, it is unreasonable that the term of the patent is to be counted from the date of the application, whereas during the period between the application and the publication only limited rights are conferred, and full rights are conferred only upon grant.

6. The inter-play between Section 53 and Section 11-A of the Act ensures that the patentee loses valuable time between the date of the application and the grant. It is, thus, contended that the period between the application and the grantof the patent ought not to be counted within the term of the patent, since the said interregnum is not of any practical benefit to the patentee insofar as the assertion of rights on the basis of the patent is concerned. The twenty years’ tenure of a patent ought to commence from the date of its grant, or at least its publication, it is argued.

7. The petitioners argue that in a previous writ petition, the petitioners’ challenge to the expiry of the patent was turned down on the ground that as per the existing law, the same had to be counted from the date of the application. Hence, the vires of the statute was not decided.

8. Moreover, in review against the said order, leave was granted by this Court to the petitioners to prefer a challenge to the vires of Section 53 by observing that the dismissal of the review application would not debar such a challenge to the vires. Thus, the present challenge is not barred by the principle of res judicata.

9. Thirdly, it is argued that the petitioners have not occasioned delay in preferring the present writ petition, since the term of the patent has not yet expired.

10. Learned counsel appearing for the respondent-Authorities argues that the writ petition is barred by delay. If a challenge was to be preferred by the petitioners, the same had to be done at the juncture when the application was made, at least before the patent was granted. Having not done so and enjoyed the fruits of the patent till now, the petitioners cannot now come up on the verge of expiry of the tenure of the patent and challenge the vires of the statute,