An order passed under Section 25(1) of the Patents Act, 1970 is appealable as it is relatable to an order passed under Section 15 of the Act. The person responsible for the order passed by the Controller is entitled to be heard in the appeal.

M.M. SUNDRESH, J.

1. The issues to be decided in this writ petition are as to whether an appeal is maintainable at the instance of the applicant for patent before the Intellectual Property Appellate Board, challenging the order of the Controller in rejecting the application for patent and if so a person making the opposition is entitled to be heard in the appeal or not?

2. Facts in Brief:-

2. 1. An application was filed by M/s.Overture Services Inc., a Delaware Corporation having its place of business in U.S.A. The International Application No.PCT/US00/14753 entered the National Phase as National Phase Application No.IN/PCT/2001/01652/CHE. The invention which was originally titled as "System and method for influencing a position on a search result list generated by a computer network search engine" was later amended to "A method of operating a computer network search apparatus". The International Application was filed on 26.03.2000. The said U.S. Application was granted as U.S.Patent No.6269361 on 31.07.2001. Thereafter, the said M/s.Overture Services Inc., got merged with the petitioner namely, M/s.Yahoo! Inc.

2. 2. As per Section 11-A of the Patents Act, 1970, the application was published on 20.04.2004 in Patents Journal No.16 of 2007. In pursuant to the same, M/s.Rediff.com India Limited of Mumbai filed a Pre-grant Opposition by way of representation under Section 25(1) of the Patents Act on 210. 2007. The Controller accepted the representation and refused to grant patent by holding that the invention of the applicant does not pass the novelty and patentability test. Challenging the said order, an appeal was preferred by the petitioner before the respondent No.1 namely, the Intellectual Property Appellate Board, Chennai.

3. The said appeal was refused to be entertained by the respondent No.1 on the ground that in as much as no appeal would lie against an order under Section 25(1) of the Patents Act, 1970 as provided under Section 117-A of the Act the same cannot be entertained. Challenging the said order of refusal to entertain the appeal filed by the respondent No.1, the petitioner has filed the present writ petition seeking to set aside the same with a consequential relief to number the appeal and hear the same on merits and in accordance with law.

3. Submissions of the Petitioner:-

3. 1. Mr.Arvind P.Dattar, learned senior counsel appearing for the petitioner submitted that the order passed by the Controller will have to be construed as the one passed under Section 15 of the Patents Act, 1970. He further submitted that the provisions of the Patents Act, 1970 are so exhaustive with an inbuilt mechanism provided for, challenging the order of an authority before the Appellate Forum namely, the respondent No.1. According to the learned senior counsel even though the order impugned is one passed under Section 25(1) it is in effect a decision relatable to and one passed under Section 15 of the Patents Act.

3. 2. In support of the said contention, the learned senior counsel has made a strong reliance upon the order passed by the High Court of Delhi in W.P.(C)No.332 of 2010 etc., wherein the learned single Judge has taken the view that an order passed under Section 25(1) of the Act will have to be construed as the one passed under Section 15 of the Act, in a case where a Pre-grant Opposition is accepted and as a consequence the application for grant of patent is refused. Mr.Arvind P.Dattar further argued that an order passed by the High Court of Delhi against the first respondent is binding and therefore the first respondent will have to be directed to take the appeal on file and decide the same on merits.

4. Submissions of the Respondent No.4:-

Mrs.Sunitha K.Sridharan, learned counsel appearing for the respondent No.4 fairly submitted that in as much as there is no way for the petitioner to challenge the order of the Controller, the reasoning assigned by the learned single Judge of the Delhi High Court sounds pro