The main legal point established in the judgment is that amendments made to patent claims at the instance of the Controller, pursuant to the directions of the Controller, do not violate the principles of natural justice and do not cause prejudice to the opposing party.

JUDGMENT :

YOGESH KHANNA, J.

1. This writ petition is filed for quashing of the impugned order dated 20.07.2020 passed by the Deputy Controller of Patents and Designs in Pre-Grant Opposition under Section 25(1) of the Patents Act filed by the petitioner against application for grant of patent titled as “Novel Fungicidal Composition” filed on 31.12.2013 by respondent No. 1.

2. It is the grievance of the learned counsel for the petitioner initially the respondent filed an application for grant of patent with complete specification to the invention viz. “Novel Fungicidal Composition.” The total claims made in such application were from No. 1-27, as annexed with the petition at Pages No. 63-65.

3. The first examination report (FER) was issued on 20.07.2020 by the Deputy Controller of Patents and Designs, Patent Office, Delhi and it required to file a response to the examination report. The petitioner filed objections to the same.

4. Form-13 dated 18.09.2019 was again filed by the respondents thereby amending their claims from 1-27 to 1-25; the amended claims are given at Pages No. 89 and 90 of the amended writ petition.

5. The hearing was granted to the petitioner qua these amended claims and it concluded on 13.01.2020. Both the parties were directed to file written submissions. The respondents sent a copy of their written submissions to the Controller with a copy to the petitioner herein. However, later at the back of the petitioner on 27.01.2020, the respondents yet again sought to amend their claims from 1-25 to 1-19 but the copy of such amendment application/written submissions were never served upon the petitioner herein and neither any Form-13 was filed. The impugned order was then passed.

6. It is argued the impugned order itself show the arguments were concluded on 23.01.2020, but the amendment application came later and without given any opportunity of being heard to the petitioner, the patent qua claims no. 1 to 19 was granted.

7. The learned counsel for petitioner referred to Neon Laboratories Pvt. Ltd. vs. Troikaa Pharma Limited and Others, 2011 (2) Bom. C.R. 54 wherein the Court held:

“43. It is, therefore, clear that the opportunity provided in Section 25(1) is not an empty formality. The Legislature in its wisdom has specifically conferred on any person a right to make representation in writing, objecting the grant of patent and that is to be made by raising specific grounds. The grounds are also enumerated in the provision. Once the Legislature has devised such a safeguard in public interest and provided for pre grant opposition, so also, set out the manner in which the same has to be dealt with, then, we cannot place a narrow interpretation on the said provision so as to defeat the legislative mandate. The distinction made by Mr. Kadam that opportunity is restricted only to the contents of the original application and there is no requirement of giving further hearing; makes the exercise meaningless and it would be then very easy to defeat Section 25(1). In this context, it must be understood that the opposition under Section 25(1) is to the “grant of a patent.” The grant is on an application made in that behalf, which itself is duly published. If the opposition is raised to the grant, then, until the same is dealt with, no patent can be granted. If the original claim/application is amended, as in this case, and the amendments are also opposed, then, a personal hearing to the objector on the amended claims is required to be given if specifically requested. That is the scheme of Section 25(1) and Rule 55 which are to be considered and read together.

52. In our view, in this case, it is not necessary to examine in further details, the aspect as to whether the breach of principles of natural justice would vitiate the proceedings to such an extent as would render the final order void. As far as our Courts are concerned, the settled view is that if the principles of natural justice are violated, the order is procedurally ultra-vi