The main legal point established in the judgment is that the communication resulting in the deemed abandonment of the petitioner's patent application was unwarranted and improper, and the respondents were directed to provide the petitioner with an opportunity for written and oral hearing in accordance with the statutory mandate.

JUDGMENT :

Gita Mittal, J.

By this writ petition, the Petitioner assails the communication dated 21st September, 2005 whereby the Controller of Patents and Designs omitted certain objections in the patent application of the Petitioner and at the same time, informed the Petitioner that the last date of putting the application in order for acceptance will expire on 21st September, 2005. Inter alia this communication is assailed on the ground that the same was received by the Petitioner, only on the 24th of September, 2005 and consequently, the Petitioner has been deprived of an opportunity of complying with the requirements communicated in the same.

2. It has further beet contended that as notified by the Respondent No. 2 in the communication, it has treated the patent application of the Petitioner as having been abandoned. The challenge is on the ground that the communication and the action of the Respondent is patently illegal and liable to be set aside and quashed.

3. The facts giving rise to the present writ petition have to be examined upon a consideration of the scheme of the Patents Act, 1970. The statutory provisions which are also required to be examined are those which were applicable on the date of consideration of the Petitioner's application.

4. The Petitioner submitted an Indian Patent Application No. IN/PLT/2002/00705/DEL on the 17th of July, 2002. A request for examination of the same was submitted on 19th November, 2004 which was within a period of two years and seven months of making of the application. The Respondent No. 3, that is the Examiner of the Patent and Designs, issued the first examination report on the 21st February, 2005.

5. It now becomes necessary to examine the statutory scheme which governs the undertaking of an examination of the patent application. In accordance with stipulations contained in Section 11(A) of the Patent Act, 1970 read with Rule 24 of the Patent Rules, 2003 the patent has to be published in the Gazette after expiry of 18 months from the date of filing of the patent application.

The applicant for the patent has to file a request for its examination u/s 11(B) read with Rule 24(B)(i) within 36 months from the date of the application or its date of priority or within 12 months from 1st January, 2005, whichever is earlier.

The Petitioner submitted this application on the 19th November, 2004, within a period of two years and seven months of the making of the application.

6. The Examiner of Patents, Respondent No. 3 has to examine the application in accordance with the provisions of Section 12 of the statute and submit the examination report within three months of the date of reference of the application for examination.

In the instant case, the first examination report was issued by the Respondent No. 3 on the 21st February, 2005.

7. The next step prescribed under the rules is the right of the Petitioner to respond to the first examination report. Such response has to be submitted in compliance with Rule 24(B)(i) within a period of six months from the first statement of objections. Therefore, such period of six months in the instant case would have expired on or about 21st August, 2005. Putting of the application in order for grant u/s 21 includes a response to all objections raised in the examination report and also compliance with all directions made thereunder as stipulated in Rule 24(B)(4)(i).

The rules, however, have permitted that this period of six months may be extended by a further period of three months when a request is made for such extension in the manner prescribed under Rule 24(B)(4)(ii)

8. Before expiry of the period of sex months on the 21st August, 2005, the Petitioner filed a request on 15th July, 2005 seeking extension of the period to comply with the objections and the first examination report. The extension was allowed by the Respondents and the Petitioner was permitted extension of one month i.e. upto 21st September, 2005 to file his reply.

9. There is no dispute that the P