The date of grant of the patent is the date on which the Controller passed the order, not the date of issuance of the certificate.

1. Since in all these appeals pure question of law arises for determination, to consider that question, facts of LPA No.561 of 2010 shall suffice as that would serve the purpose.

2. The respondent No.5, viz., J. Mitra & Co. Ltd had filed two patent applications in the Office of the Controller of Patents on 14.6.2001. Patent Specifications were published in the official gazette on 20.11.2004 in terms of Section in terms of Section 11A of the Patents Act (hereinafter referred to as „the Act?). As per provisions of Section 25 (unamended) of the Act, which held the field at that time, an opposition to the grant of patent could be filed within four months from the date of publication. Such a period could be extended by one month by the Controller on being satisfied by the reasons given for such delay. One M/s. Span Diagnostics Ltd. (SDL) filed pre-grant opposition. It was considered by the Controller and vide detailed order dated 23.8.2006, the Controller rejected this opposition. On rejection of pre-grant opposition, the Controller ordered grant of patent on the application of the respondent No.5 putting a particular condition. Since this portion of the order is bone of contention, we would like to reproduce the same hereunder:

“In view of the above discussion and in consideration of the submissions of both the parties. I hereby order to grant [Patent No.194639] on Patent Applicant No.590/Del/2000 with the following condition: The Applicants shall give cross reference to the patent application no.593/Del/2000 on page 2 of the complete specification and submit the amended/retyped page(s) within a seek from the date of these order. The Opposition on Patent Application No.590/Del/2000 (194639) is disposed of in above terms. No order to cost.”

3. As per the appellant, she had sent pre grant opposition by currier on 22.8.2006 which was received by the Patent Office on 24.8.2006. As on that date, Section 25 (1) of the Act stood amended by the Patents (Amendment) Act, 2005 with effect from 01.1.2005. As per the amended provision, the time for filing a pre-grant opposition stood extended till the grant of patent. According to the appellant, her pre-grant opposition received on 24.8.2006 was within time as per the Amended provision of Section 25(1) of the Act inasmuch as there was no patent granted by that time. It was her case that the patent is not granted till such time it is not sealed and entered in the Register in terms of Section 43(1) of the Act and such a patent was granted on 22.9.2006. On the other hand, the respondent No.5 pleaded that when the objections were rejected on 23.8.2006 in terms of Rule 55(6) of the Rules, no application for pre-grant opposition was maintainable.

4. The Controller accepted the plea of the respondent No.5 and rejected pre-grant opposition of the appellant vide orders dated 16.10.2006. Since this order was passed without hearing the appellant, the appellant challenged the order by filing Writ Petition (C) Nos.3516/2007 and 3517/2007. The Controller thereafter, however, gave hearing to the appellant and passed order dated 22.5.2007 rejecting the pre-grant opposition as time barred. Challenging the aforesaid order, the appellant had filed writ petitions and they have been filed under similar circumstances, viz., after the rejection of the earlier pre-grant opposition, but before the patent was entered into the Register. In this backdrop, the question that arose for consideration in these writ petitions was that when can a patent said to be granted.

5. Learned Single Judge vide detailed judgment has taken the view that when the pre-grant opposition filed by SDL was rejected on 23.6.2006, that would be the date which is to be reckoned for grant of patent and the opposition filed by the appellant on 24.8.2006 was not maintainable as a pre-grant opposition since it was time barred as the patent had already be granted.

6. Submission of Mr. Sudhir Chandra, learned Senior Counsel appearing for the a