The main legal point established in the judgment is that the Intellectual Property Appellate Board has the power and jurisdiction to go into the validity of a resolution to determine the maintainability of an application under Section 64 of the Patents Act, 1970.

M.M. Sundresh, J.

1. W.P.No.17539 of 2011 has been filed for the issuance of a writ of certiorarified mandamus to call for the records of the order, dated 2nd December, 2010, passed by the first respondent in its proceedings ORA No.11/2009/PT/CH and quash the same and consequently, direct the third respondent to restore/reinstate the petitioners' patent No.IN202912 on the Register of Patents in the event that the same is removed subsequent to the filing of the present writ petition.

2. With the same prayer, challenging the similar proceedings, of course with different numbers, other writ petitions have been filed by the very same petitioner. Since all these writ petitions are interconnected on facts and issues, they have been heard together and are given joint disposal by this Common Order.

3. The pivotal issue that looms large before us at this stage is the jurisdiction and its extent of the Intellectual Property Appellate Board in entertaining an application filed under Section 64 of the Patents Act, 1970. To be precise, we are only concerned at this stage with the jurisdiction of intellectual property to decide the validity of an authorisation to come to the conclusion that an agent is duly authorised. While we embark upon this exercise, we intend to keep away from the factual issues surrounding the case except to the extent required. We adopt this process as we do not wish to arrogate ourself to the position of the Intellectual Property Appellate Board, if we are to hold that it does have the said power and therefore, failed to exercise it. We are also conscious about the fact that we are exercising the power under Article 226 of the Constitution of India and hence, it is prudent to relegate the exercise of validity of the document of authorisation to the authority which is required to do so.

4. Background Facts:

“4.1.To decide the legal issue raised, the basic facts surrounding the case are necessary to be placed on record. As mentioned earlier, we do not wish to go into the facts in detail as they are not required at this stage but perhaps at a later point of time.

4.2. The second respondent is an entity which has its existence through joint venture between two groups viz., family of Mehras (Mr.Yogesh Mehra and Mr.Ajay Mehra) and Enercon GmbH, in which, the petitioner is the sole Proprietor. The petitioner is also the Chairman of the second respondent. 56% of the shares of the second respondent, viz., Enercon (India) Limited, is held by Enercon GmbH, thus, having majority holding. The second respondent is also a licencee of the petitioner.

4.3.Mr.Yogesh Mehra, representing the second respondent, filed an application before the Intellectual Property Appellate Court viz., the first respondent herein, seeking to invoke the powers under Section 64 of the Patents Act 1970, by praying for the revocation of patents. The first respondent returned the papers stating the following:

“GPA/Resolution passed by Board of Directors in favour Shri Mr.Yogesh Mehra has to be filed.”

An endorsement, which was made by the learned counsel representing the second respondent, is extracted hereunder:

"As regards the production of Board Resolution authorizing the deponent to represent the Company, it is submitted that since the deponent being the managing Director he is empowered to represent the Company without such Resolution."

Thereafter, the application was numbered and taken on file. The petitioner raised the issue of maintainability of the application filed under Section 64 of the Patents Act 1970 before the first respondent. At that point of time, Mr.Yogesh Mehra made reliance upon the resolution dated 26.04.2007 said to have been passed on behalf of the second respondent. The petitioner questioned its validity. The first respondent passed the orders in the miscellaneous applications stating that the question of validity or Proprietary will have to be decided at the time of deciding the main application. The petitio