The time period for filing the application is mandatory, and the Patents Rules are in conformity with Regulation 49 of the PCT Regulations.

JUDGMENT

Vibhu Bakhru, J.

1. The petitioner (Humanity Life Extension LLC) is, inter alia, engaged in the business of manufacturing medical devices and its corporate headquarters is located in the United States of America. The petitioner has filed the present petition, inter alia, praying as under:

"i) This Hon'ble Court may be pleased to declare, by issue of an appropriate writ, order or direction, that the amendment of Rule No. 138 of the Patents Rules, 2003 effective from 16.05.2016, by virtue of which provision for extension of time to entertain an international patent application by one month has been taken away, as being ultra vires of the rule making power conferred upon the Central Government under Section 159 of the Patents Act, 1970, being in conflict with the Patents (Amendment) Act No. 38 of 2002 and Patents (Amendment) Act No. 15 of 2005 and existing Rule 23 of the Patents Rules, 2003;

ii) The Hon'ble Court may, further, be pleased to direct the respondent Controller of Patents, by means of issue of a writ of mandamus or certiorari or any other appropriate writ or direction, to entertain the petitioner's National Phase Application and the application for extension of time, whether maintainable under Regulation 49.6 of Patent Cooperation Treaty Regulations and/or Rule 138 of Patents Rules, 2003, and decide the same after affording adequate opportunity of hearing and for presenting its case before the Controller of Patents."

2. The petitioner is, essentially, aggrieved as the Controller of Patents (hereafter `the Controller') has declined to entertain the petitioner's National Phase Application.

3. The petitioner claims that on 26.07.2019, its US Patent Attorney had instructed the Indian Patent Attorney to file the petitioner's National Phase Application for registration of its patent for a System and Method for Treating Blood, corresponding to the Patent Cooperation Treaty (hereafter `PCT') Application No. PCT/US2018/016797 dated 05.09.2018, claiming priority from US Application No. 15/425,494 dated 06.02.2017 captioned "System and Method for Treating Blood". The petitioner claims that its US Patent Attorney had expressly communicated to its Indian Patent Attorney that the time period of thirty-one months for filing the National Phase Application will expire on 06.09.2019. The petitioner claims that after the expiry of the aforesaid time period, it contacted its US Patent Attorney to enquire about the status of the National Phase Application in India. On enquiries, the petitioner became aware that the Indian Patent Attorney had not filed the National Phase Application within the stipulated period.

4. The petitioner engaged another attorney in India and on 01.10.2019, its Indian Patent Attorney forwarded the petitioner's National Phase Application under the cover of its letter to the Indian Patent Office (hereafter `IPO'). This application was returned by the IPO on 03.10.2019, and received by the petitioner's Indian Patent Attorney on 07.10.2019.

5. Immediately, thereafter on 09.10.2019, the petitioner's Indian Patent Attorney once again forwarded the National Phase Application to the IPO claiming that the application was maintainable in view of Regulation 49.6 of the Patent Corporation Treaty Regulations (hereafter `the PCT Regulations'). The IPO did not accept the same and, on 14.10.2019, once again returned the said applications.

6. The petitioner had filed an application in the United States bearing no.15/425,494 captioned "System and Method for Treating Blood" on 06.02.2017. It had filed an International Application on 05.02.2018, which is within the period of twelve months as prescribed under the PCT. Admittedly, in terms of Rule 20 of the Patents Rules, 2003 (hereafter `the Patents Rules') the National Phase Application was required to be filed within a period of thirty-one months from the Priority Date; that is, within thirty-one months from 06.02.2017. The last date for filing the National Phase Appli