The court ruled that a patent application cannot be deemed abandoned due to an error by the applicant's agent unless intentional abandonment is proven.

ORDER :

N.ANAND VENKATESH, J.

This writ petition has been filed for the issue of writ of Mandamus directing the respondent to accept the petitioner’s request for examination under Form 18 in the Indian Patent Application No.IN202447028876 and to process the same in accordance with law.

2. Heard Ms.Preeti Mohan, learned counsel for the petitioner and Mr.K.Subbu Ranga Bharathi, learned Central Government standing counsel for respondent.

3. The petitioner is a US Citizen and his US and International patent is pending for Prediction, Visualisation and Remediation of Satellite Conjunctions. The petitioner filed the provisional patent application in the USA on 10.09.2021. Thereafter on 08.09.2022, the petitioner filed the 2^nd patent application in US. On 09.09.2022, the petitioner preferred Patent Co-operation Treaty (PCT) application claiming priority from both the previous US applications. The subject Application was filed in India by the Indian Patent agent of the petitioner. The subject application sought priority from the US application dated 10.09.2021.

4. The further case of the petitioner is that US IP Attorneys were following up an Indian firm, which was engaged to prosecute the Indian application and to enquire if all the formal requirements have been made to prosecute the Indian Patent Application.

5. The specific case of the petitioner is that the Indian Patent Agent responded by confirming that all the formalities have been completed. Thereafter, the Indian Patent Agent vide email dated 14.10.2024 sent a reminder that the deadline to file a request for examination is only on 08.04.2025. Thus, there seems to be an inadvertent omission on the part of the Indian Patent agent, who erroneously calculated the deadline to file the request for examination, which is 31 months period prescribed under the statute, from the second priority patent application dated 08.09.2022 instead of the date of the first priority Patent application dated 10.09.2021. Due to this mistake, the deadline to file the request for examination which ought to have been made on or before 10.04.2024 was not done and as a result, the time period to lodge the request had lapsed.

6. The Indian Patent Agent, who was under a mistaken notion, attempted to file the request for examination on 10.12.2024 but was unable to file the same since web portal of the Indian patent office did not accept the request and the action was designated as “Not valid”.

7. When the petitioner was informed about the same, the petitioner had sent an email communication dated 10.12.2024 to the online services support of the respondent and request for assistance to file the examination request for this application. The status of the patent application was shown as “Awaiting request for examination” but the access to lodge such a request was not functional.

8. Ultimately on 30.12.2024, the Indian Patent Office responded stating that the time period to file the request for examination expired. It is under these circumstances, the present writ petition came to be filed before this Court.

9. The learned counsel for the petitioner submitted that there was an inadvertent omission on the part of the Indian Patent Agent and as a result, even though there was no intention on the part of the petitioner to abandon the application, the time period within which the request for examination had to be done had expired on 10.04.2024 which was inadvertently informed to the petitioner as 08.04.2025. The learned counsel also relied upon the judgement passed in [ Chandra Sekar Vs. Controller of Patent and