The court affirmed that rejection of a patent application must adhere to principles of natural justice, including proper examination and opportunity to respond, underscoring the importance of procedural fairness.

ORDER :

This writ petition has been filed challenging the impugned order on the ground of violation of principles of natural justice and also on the ground that by total non-application of mind, the impugned order has been passed.

2. The petitioner had sought for patent in respect of their claimed invention before the respondent, which has been rejected under the impugned order dated 09.03.2021. The petitioner claims that since the impugned order is an order passed under Section 21 of the PATENTS ACT and is an abandonment order, the question of filing an appeal against the said order does not arise and only a writ petition is maintainable as the impugned order is not an appealable order. According to the petitioner, by total non-application of mind, the impugned order has been passed. According to the petitioner, only hearing notice was received by them and no second examination report was submitted by the respondent. However, by total non-application of mind, in the impugned order, the respondent has observed that there was a second examination report. The petitioner also claims that they were not served with the copy of the impugned order at the first instance and only on a request made by them, the order copy was served and therefore, there is no delay on their part in filing this writ petition.

3. A counter affidavit has been filed by the respondent in this writ petition denying the contentions of the petitioner. According to them, even though the operative portion of the impugned order refers to Section 21 of the PATENTS ACT , 1970, the impugned order is a refusal order passed under Section 15 of the PATENTS ACT , 1970 and only on merits, the patent application submitted by the petitioner was refused under Section 15 of the PATENTS ACT , 1970. Therefore, the only remedy available to the petitioner is to file an appeal, if so aggrieved by the impugned order and therefore, the present writ petition is not maintainable.

4. Learned Senior Counsel appearing for the petitioner referred to various documents/orders/notices filed along with this writ petition as well as to the impugned order and would submit that by total non-application of mind and despite the fact that replies to the objections were filed by the petitioner before the respondent, the respondent has passed an order under Section 21 of the PATENTS ACT , 1970, treating the petitioner's patent application as abandoned. Learned Senior Counsel also drew the attention of this Court to the request made by the petitioner to the respondent for production of the impugned order and only on receipt of the same, at a later date, the petitioner was able to file this writ petition and therefore, there is no delay on the part of the petitioner in filing this writ petition.

5. On the other hand, learned Standing Counsel appearing for the respondent, drawing the attention of this Court to the impugned order, would submit that only after giving due consideration to the merits of the petitioner's patent application and by referring to the prior documents referred to therein, the respondent has refused to grant patent to the petitioner. Learned Standing Counsel would submit that even though the impugned order refers to Section 21 of the PATENTS ACT , 1970, the order was passed only under Section 15 of the PATENTS ACT , 1970, as the objections submitted by the petitioner to the first examination report was considered and only thereafter, the petitioner's patent application was rejected. There is delay on the part of the petitioner in approaching this Court and the only remedy available to the petitioner is to file an appeal and not t