The main legal point established in the judgment is that the remedy for a petitioner dissatisfied with a pre-grant opposition decision is to file a post-grant opposition or an application for revocation in accordance with the provisions of the Patents Act, 1970.

JUDGMENT :

Prathiba M. Singh, J.

The present petition has been filed, challenging the order of the Deputy Controller of Patents & Designs (hereinafter, "Deputy Controller") dated 14th March, 2019 as the Intellectual Property Appellate Board (hereinafter, "IPAB") is not currently fully constituted and is not functional. The present writ petition was filed seeking setting aside of the impugned order as at that time, the technical member of IPAB had not been appointed. Thereafter, in view of judicial orders, the IPAB commenced its hearings. However, during the pendency of the present writ petition, the Chairperson of IPAB has demitted office.

2. The contention of Ms. Rajeshwari, ld. counsel appearing for the Petitioner is that the Petitioner had filed a pre-grant opposition challenging the grant of a patent to Respondent No.3, which relates to 'Methods of Evaluating Peptide Mixtures'. The Petitioner is stated to have relied upon four prior arts, which, according to the ld. counsel for the Petitioner, have not been considered and no reasons have been given by the Ld. Deputy Controller while rejecting the pre-grant opposition. Her contention is that all the prior arts cited by the Petitioner have been dealt with in one paragraph and the same does not constitute adequate reasons. Hence, according to Ld. Counsel, no proper order has been passed on merits.

3. On the other hand, ld. counsel for Respondent No.3 which is the contesting respondent, submits that hearings in the pre-grant opposition were held in January, 2019 and parties were permitted to file written submissions. It is also submitted that the claims of the patent itself were amended, owing to the prior arts which had been cited by the Petitioner, and that the ld. Deputy Controller has, in fact, examined the matter fully, including the amended claims, as is evident from the last four pages of the impugned order. The order is quite well-reasoned. Ld. Counsel further relies upon the judgment of this Court in UCB Farchim Sa v. Cipla Ltd. & Ors., (2010) 167 DLT 459, which holds that no appeal or writ is maintainable against the order deciding the pre-grant opposition.

4. The Court has considered the impugned order as also the judgment in UCB Farchim (supra). The Patents Act, 1970 (hereinafter, "the Act") provides for filing of pre-grant oppositions and post-grant oppositions under Sections 25(1) and 25(2), as also revocation under Section 64, by a person who is challenging the grant of the patent or who is seeking revocation of the patent. Since there are three distinct remedies available under the Act, the scheme of the Act was considered in detail in UCB Farchim (supra) wherein a ld. Single Judge of this Court, after analysing the judgment of the Supreme Court in J. Mitra & Company v. Assistant Controller of Patents & Designs, (2008) 10 SCC 368, held as under:

"15. In the first eventuality, where the pre-grant opposition is rejected, it is apparent from the decision in J. Mitra and from a reading of Section 25 with Section 117A that as long as the person who has filed that opposition happens to be a person interested, he would, after 1st January, 2005 [the date with effect from which Section 25 (2) came into force although the provision was introduced only on 4th April, 2005] have the remedy of filing a post-grant opposition. He can, after 2nd April, 2007, also file an application before the IPAB under Section 64 of the Patents Act for revocation of the patent. In other words, as explained by the Supreme Court in J. Mitra & Co. as long as that person is able to show that he is a person "interested", he is not without a remedy after his pre-grant opposition is rejected. He in fact has two remedies. Even if his post-grant opposition is rejected, he can thereafter file an appeal to the IPAB under Section 117A. Against the decision of the IPAB in either event he will have the remedy of seeking judicial review in accordance with law by filing a petition in the High Court. At this junct