IMPORTANT POINT
The non-binding nature of Opposition Board recommendations and the Controller's discretion in deciding the qualitative merit of the recommendations.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the recommendations passed by the first respondent pertaining to Opposition Proceedings initiated by respondent No.2 against petitioner's Patent bearing IN387429, the Recommendation of the Opposition Board issued under Rule 56(4) of the Patent Rules dated 31.10.2023, and quash the same and consequently direct the respondent No.1 to consider the documents filed by the petitioner and the respondent No.2 to consider the matter afresh by reconstituting a fresh Opposition Board for providing a fresh Joint Recommendation.)

1. This writ petition is filed challenging the recommendations of the Opposition Board constituted under Rule 56 of the Patent Rules.

2. The issue roams within a narrow space. The petitioner is keen to defend its patented invention titled “Multi-Axle Vehicle Configuration having Heavy Duty Lift Axle”. To describe the same in a layman's language, a multi axle vehicle invariably will have two major parts: The front portion is called the tractor (where the engine will be) and the rear portion is the chassis-trailer which will be attached to the tractor. In the context of the present case, further details of the petitioner's invention may not be necessary. The facts relevant to the context of the present case are:

a) Subsequent to the grant of patent to the above invention of the petitioner, the 2 nd respondent herein came out with its opposition to the grant of patent under Section 25(2) of the Patents Act. Along with it, it also, filed the evidence of Dr.Anoop Chawla and Mr.Amit Kumar Gupta, both of whom are claimed to be experts in the field. In response, the petitioner-patentee had filed its reply statement with two evidences – the affidavits of certain Dr.S.Ramamurthy and Dr.Sathya Prasad Mangalaramanan, who according to the petitioner are also experts in the field.

b) The matter was then duly placed before the Opposition Board constituted under Rule 56 of the Patent Rules by the Controller. On 31.10.2023, the Opposition Board has come out with its recommendations (henceforth would be referred to as the OBR). Now the matter is posted for hearing by the Controller of Patents on 07.02.2024.

According to the petitioner, the Opposition Board had a made an easy job of its responsibility when it merely cut-copy-pasted the written statement of the 2 nd respondent and the reply statement of the petitioner and its impressions on them, but sans the evidence which both the parties. The failure to consider the evidence of both the petitioner and the 2 nd respondent has rendered the OBR incomplete. The OBR however, is no ordinary document, but will be a foundational document when the Controller takes up the matter for hearing, and hence it assumes considerable significance. Since the Opposition Board has omitted to consider the evidence produced by both the sides, the entire exercise that it undertook has been reduced to a cosmetic exercise. It is plainly incomplete and an incomplete OBR cannot be a foundational document during hearing. Hence the challenge is made to the OBR.

3. None filed the counters, but the respondents opposed the sustainability of the relief sought in the petition.

4. Placing reliance on CIPLA Ltd. v. Union of India and others [(2012) 13 SCC 429], the learned counsel for the petitioner submitted that the Hon'ble Supreme Court had not only made a strong statement regarding the significance of the OBR, but had also emphasized that the Opposition Board needs to consider the evidence produced by the parties. It may be that the petitioner may have an opportunity to address the flaws in the OBR before the Controller, and may also require him to consider the evidence which the opposition board had failed to consider, yet the apprehension is not based on any competency or integrity of the Controller, but on the possible adverse economic ramification of the