* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment
pronounced on: 20th April, 2017
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W.P.(C)
7850/2014
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M/S.
IRITECH INC
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..... Petitioner
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versus
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THE
CONTROLLER OF PATENTS
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..... Respondents
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Advocates
who appeared in this case:
For the Petitioners : Mr. S.K.
Bansal with Mr. Ajay Amitabh Suman, Advocates.
For the Respondents
: Mr. Akshay Makhija, CGSC with Mr. Shivi Sanyam, Advocate.
CORAM:-
HON’BLE MR JUSTICE SANJEEV
SACHDEVA
JUDGEMENT
SANJEEV SACHDEVA, J
1.
The Petitioner by the present petition seeks
quashing of the
“deemed to be withdrawn” status of the application No.
5272/DELNP/2008 under section 11B of the Patents
Act, 1970 (hereinafter referred to as the Act) and seeks restoration of the
said application and for proceeding further with the same. The Petitioner also
seeks a direction to the respondents to correct the clerical/typographical
error in the number of the Patent application in Form No. 18 and other
documents to read as 5272/DELNP/2008.
2. The petitioner on 08.01.2007 filed an
application in the Patent Office of the Republic of Korea, in respect of
invention titled “IRIS
IDENTIFICATION SYSTEM AND
METHOD USING MOBILE
WP(C) 7850/2014 Page 1 of 20
DEVICE
WITH STEREO CAMERA” for grant of Patent under the
Patent Co-operation Treaty vide PCT Application No.
PCT/KR2007/000099.
3.
On 18.06.2008, the petitioner
filed the Indian National Phase Application No. 5272/DELNP/2008. The priority
date in respect of the Indian National Phase Application was shown to be
07.01.2006 and the PCT international filing date was shown to be the date of
the filing of the Korean Patent i.e. 08.01.2007.
4.
The Petitioner on 30.06.2008 made
a request, under Section 11B (1) of the Act on Form 18 under the Patent Rules
2003 (hereinafter referred to as the Rules) for substantive examination of the
said Indian National Phase application.
5.
It is contended by the Petitioner
that during the follow up actions, it was noticed that in Form 18 as well as in
its covering letter, the number of the Indian National Phase application had
been incorrectly typed as 6272/DELNP/2008 instead of 5272/DELNP/2008.
6.
On 02.01.2010 (incorrectly dated
as 02.01.2009), the petitioner addressed a letter to the Respondent bringing to
its notice the aforesaid error of the Patent application number in Form 18 and
requested the Respondent to treat the request for substantive examination on
Form 18 and the payment made there under, in relation to Patent application No.
5272/DELNP/2008 instead of No. 6272/DELNP/2008. The letter sought correction
under Section 78 of
WP(C) 7850/2014 Page 2 of 20
the Act and was accompanied with the prescribed fee of Rs. 2,000/-for
carrying out the correction under Section 78 of the Act. The Petitioner also
enclosed therewith the corrected Form 18 and the covering letter. It is
contended that thereafter there was no communication from the side of the
Respondents.
7.
Subsequently on 02.02.2010, the
petitioner obtained the search report of the aforesaid application from the
official website of the Indian Patent Office wherein the application was shown
as “deemed to be withdrawn” under Section 11B (4) of the Act.
8.
By email dated 30.01.2012, the
Assistant Controller of Patents and Designs informed the petitioner that the
documents filed by the petitioner seemed to relate to the Patent Application
No. 5272/DELNP/2008 but had been filed mentioning the application No.
6272/DELNP/2008, which did not belong to the petitioner. The Assistant
Controller also informed that the petitioner may face difficulty in meeting the
time lines for filing Form 18 and informed that necessary remedial steps be
taken.
9.
The petitioner by letter dated
13.02.2012 requested the Respondent to make necessary corrections in terms of
its aforesaid letter dated 02.01.2010 (sic
02.01.2009). The petitioner also requested that the status of the
application be corrected. The Respondents declined to entertain the application
of the petitioner leading to the filing of the present petition.
WP(C) 7850/2014 Page 3 of 20
10.
The Respondents in their counter
affidavit have contended that under Section 78 of the Act, the Power of the
Controller to correct clerical errors can only be exercised or made to effect,
when the patent application is in examination procedure. It is contended that
as the patent application was not in examination on the date of filing of the
request under Section 78 i.e. on 02.01.2010, there was no office action
possible on the petitioner’s patent application.
11.
It is submitted that the priority
date of the patent application No.5272/DELNP/2008 was 07.01.2006 and
consequently the last date, for filing Form-18 (Request for Examination) was
07.01.2010 and the requisite form-18 was never filed in the said patent
application consequently the application had become “deemed to be withdrawn”
on the expiry of 07.01.2010.
12. It is submitted that the office action under
Section 11B (4) (deemed to be withdrawn) is the outcome of inaction on the part
of the petitioner due to non-filing of the request for examination for the
relevant application, within the prescribed period of four years. It is
contended that the petitioner’s authorized patent agent had not acted
diligently for the reason that when he submitted Form 18, office issued a CBR
(Receipt) indicating the application number in which the request was filed and
if he had properly checked, he would have noticed the error and notified the
office immediately to avoid such a situation.
WP(C) 7850/2014 Page 4 of 20
13.
It is submitted that the request
for correction made by the petitioner by letter dated 02.01.2010 (sic 02.01.2009) was not the proper
procedure to make corrections under the Act. It is further submitted that the
petitioner made a request for correction of the error only on 13.02.2012 which
was beyond the statutory time period and by that time the patent application
was already deemed to have been withdrawn under Section 11B(4). It is contended
that the petitioner’s agent should have filed a request for examination in
prescribed manner afresh, within the prescribed period of four years, to seek
correction of the mistake.
14.
It is further contended that as
per Section 11B of the Act any interested person, other than the applicant, can
also make a request on Form 18, so there was no reason to doubt that there was
any mistake or mismatch in the Form-18 submitted by the petitioner.
15.
Reliance is placed by counsel for
the Respondent on the decision of a coordinate bench of this court NIPPON STEEL
CORPORATION VERSUS UNION OF INDIA: 2011
III AD (Delhi) 226, to
contend that the Controller of patents is not competent to allow the
application for amendment after the patent application is deemed to have been
withdrawn.
16. To resolve the controversy we would need to
examine the scheme of Sections 11 B, 12 of the Act, Rules 24 B of the Rules
pertaining to making a Request for Examination and Section 78 pertaining to
power of controller to correct errors.
WP(C) 7850/2014 Page 5 of 20
17. Section 11B of the Act which deals with request
for examination and section 12 which deals with examination of the applications
read as under:
“Section 11B. Request for examination
(1)
No application for a patent shall be examined unless the applicant or
any other interested person makes a request in the prescribed manner for such
examination within the prescribed period.
(2)
Omitted
by the Patents (Amendment) Act, 2005
(3)
In case of an application in respect of a claim for a patent filed under
sub-section (2) of section 5 before the 1st day of January, 2005 a request
for its examination shall be made in the prescribed manner and within the
prescribed period by the applicant or any other interested person.
(4)
In case the applicant or any other interested person does not make a
request for examination of the application for a patent within the period as specified
under subsection (1) or sub-section (3), the application shall be treated as
withdrawn by the applicant:
Provided that—
(i)
the applicant may, at any time after filing the application but before
the grant of a patent, withdraw the application by making a request in the
prescribed manner; and
(ii)
in a case where secrecy direction has been issued under section 35, the
request for examination may be made within the prescribed period from the date
of revocation of the secrecy direction.
12.
Examination of application.—
WP(C) 7850/2014 Page 6 of 20
(1) When a request for
examination has been made in respect of an application for a patent in the
prescribed manner under sub-section (1) or sub- section (3) of section 11B, the
application and specification and other documents related thereto shall be
referred at the earliest by the Controller to an examiner for making a report
to him in respect of the following matters, namely:—
(a)
whether the application and the specification and other documents
relating thereto are in accordance with the requirements of this Act and of any
rules made there under;
(b)
whether there is any lawful ground of objection to the grant of the
patent under this Act in pursuance of the application;
(c)
the result of investigations made under section 13; and
(d)
any other
matter which may be prescribed.
(2) The examiner to whom the
application and the specification and other documents relating thereto are
referred under sub-section (1) shall ordinarily make the report to the
Controller within such period as may be prescribed.
18. Section 11 B of the Act, inter-alia, prescribes that no
application
submitted for grant of a patent shall be examined unless
the
applicant or any other interested person makes a request in the
prescribed
manner, for such examination, within the prescribed period
and if no
request is made within the prescribed period the application
would be
deemed to have been withdrawn.
WP(C) 7850/2014 Page 7 of 20
19.
Under section 12 of the Act, when
a request for examination is made in respect of an application for a patent
under sub-section (1) or sub- section (3) of section 11B, the application and
specification and other documents related thereto are to be referred at the
earliest, by the Controller, to an examiner for making a report to him, inter-alia, as to whether the
application and the specification and other documents relating thereto are in
accordance with the requirements of this Act and of any rules made there under.
The examiner to whom the application and the specification and other documents
relating thereto are referred under sub-section (1) is to make the report to
the Controller within such period as may be prescribed.
20.
Rule 24B of the Rules that
prescribes the respective periods referred to in Section 11B and 12, reads as
under:
Rule 24B. Examination of application.—
(1)(i) A request for examination
under section 11 B shall be made in Form 18 within forty-eight months from the
date of priority of the application or from the date of filing of the application,
whichever is earlier;
(ii)
The period within which the request for examination under sub-section
(3) of section 11B to be made shall be forty-eight months from the date of
priority if applicable, or forty-eight months from the date of filing of the application;
(iii)
The request for examination under sub-section (4) of section 11B shall
be made within forty-eight months from the date of priority or from the date of
filing of the application, or within six months from the date of revocation of
the secrecy direction, whichever is later;
WP(C) 7850/2014 Page 8 of 20
(iv)
The request for examination of application as filed according to the ‘Explanation’
under sub-section (3) of section 16 shall be made within forty-eight months
from the date of filing of the application or from the date of priority of the
first mentioned application or within six months from the date of filing of the
further application, whichever is later;
(v)
The period for making request for examination under section 11B, of the
applications filed before the 1st day of January, 2005 shall be the period
specified under the section 11B before the commencement of the Patents
(Amendment) Act, 2005 or the period specified under these rules, whichever
expires later.
(2)(i) The period within which the
Controller shall refer the application and specification and other documents to
the examiner in respect of the applications where the request for examination
has been received shall ordinarily be one month from the date its publication
or one month from the date of the request for examination whichever is later:
Provided
that such reference shall be made in order in which the request is filed under
sub-rule (1).
(ii)
The period within which the examiner shall make the report under
sub-section (2) of section 12, shall ordinarily be one month but not exceeding
three months from the date of reference of the application to him by the
Controller;
(iii)
the period within which the Controller shall dispose off the report of
the examiner shall ordinarily be one month from the date of the receipt of the
such report by the Controller.
(3) A first examination report
along with the application and specification shall be sent to the applicant or
his authorised agent ordinarily within six
WP(C) 7850/2014 Page 9 of 20
months from the date of the
request for examination or six months from date of publication whichever is
later. In case other interested person files the request, for examination, an
intimation of such examination may be sent to such interested person.
(4) The time for putting an
application in order for grant under section 21 shall be twelve months from the
date on which the first statement of objection is issued to the applicant to
comply with the requirements.
21.
Under Rule 24B (1) of the Rules,
a request for examination under Section 11 B of the Act is to be made in Form
18 within forty-eight months from the date of the priority of the application
or from the date of filing of the application, whichever is earlier. In the
present case, the last date admittedly was 07.01.2010.
22.
Rule 24B (2)(i) of the Rules, inter-alia, prescribes that the
Controller shall refer the application and specification and other documents to
the examiner, in respect of the applications where the request for examination
has been received, ordinarily within one month from the date its publication or
one month from the date of the request for examination whichever is later.
23.
Under Rule 24B(2)(ii), the
examiner is to make a report, under sub-section (2) of section 12, between one
month to three months, from the date of reference of the application to him by
the Controller.
24.
Section 11A of the Act, dealing
with Publication of applications, stipulates that an application for grant of
patent shall ordinarily not be open to the public for such period as may be
WP(C) 7850/2014 Page 10 of 20
prescribed. After the prescribed period, during which it is not open to
public, the application is to be published as soon as possible. Rule 24 of the
Rules prescribes the period, during which it would not be open to public, as 18
months from the date of filing of the application or the date of priority of
the application, whichever is earlier. After the expiry of the said period, the
Controller has to publish the application in the journal, within one month.
25.
In the present case, the Indian
National Phase application, for grant of patent, was made on 18.06.2008. The
request for examination under Section 11B(1) of the Act, mentioning an
incorrect application number, was made on 30.06.2008. The priority date of the
application is 07.01.2006. In terms of Rule 24, the application for grant of
patent had to be published within one month of expiry of 18 months of the date
of application (i.e. 18.06.2008) or 18 months of the priority dated (i.e.
07.01.2006), whichever is earlier. Under Rule 24B, the request for examination
under section 11B had to be referred to the examiner within one month of the
publication. In the instant case, the earlier of the two dates is 07.01.2006,
so the publication would have had to happen within one to three months of
expiry of 18 months thereof. i.e. within three months of 07.07.2007.
26.
The request for examination under
section 11B was filed on 30.06.2008 so the same under Rule 24B would have had
to be referred to the examiner within one month of the receipt i.e. by
30.07.2008. The examiner would thereafter be required to submit the report
within one month. If the examiner had examined the application under 11B
WP(C) 7850/2014 Page 11 of 20
of the Act, in time and submitted his report to the controller, it would
have been brought to the notice of the Petitioner well before the expiry of 48
months prescribed period, that there was an error in the request for
examination and the petitioner could have taken steps to remedy the error.
27.
The Petitioner on 02.01.2010
filed a letter with the Respondents seeking correction under section 78 of the
Act. The request for correction was made prior to the expiry of the prescribed
period of 48 months, which was to expire on 07.01.2010.
28.
Section 78 of the Act, which
deals with the power of the Controller to correct errors, reads as under:
“S. 78.
Power of Controller to correct clerical errors etc.—
(1)
Without prejudice to the provisions contained in sections 57 and 59 as
regards amendment of applications for patents or complete specifications or
other documents related thereto and subject to the provisions of section 44,
the Controller may, in accordance with the provisions of this section, correct
any clerical error in any patent or in any specification or other document
filed in pursuance of such application or in any application for a patent or
any clerical error in any matter which is entered in the register.
(2)
A correction may be made in pursuance of this section either upon a
request in writing made by any person interested and accompanied by the
prescribed fee, or without such a request.
(3)
Where the Controller proposes to make any such correction as aforesaid
otherwise than in pursuance of a
WP(C) 7850/2014 Page 12 of 20
request made under this section,
he shall give notice of the proposal to the patentee or the applicant for the
patent, as the case may be, and to any other person who appears to him to be
concerned, and shall give them an opportunity to be heard before making the
correction.
(4)
Where a request is made under this section for the correction of any
error in a patent or application for a patent or any document filed in
pursuance of such an application, and it appears to the Controller that the
correction would materially alter the meaning or scope of the document to which
the request relates and ought not to be made without notice to persons affected
thereby, he shall require notice of the nature of the proposed correction to be
published in the prescribed manner.
(5)
Within the prescribed time after any such publication as aforesaid any
person interested may give notice to the Controller of opposition to the
request, and, where such notice of opposition is given, the Controller shall
give notice thereof to the person by whom the request was made, and shall give
to him and to the opponent an opportunity to be heard before he decides the
case.”
29.
Section 78 of the Act, inter-alia, empowers the controller to
correct any clerical error in any patent or in any specification or other document
filed in pursuance of such application or in any application for a patent or
any clerical error in any matter which is entered in the register. The
correction can be made either upon a request in writing made by any person
interested and accompanied by the prescribed fee, or without such a request.
WP(C) 7850/2014 Page 13 of 20
30. The rules prescribe various
forms for different actions under the Act and the Rules. The First Schedule
read with Rule 7 rules provides for the forms and the fee to be paid for
various actions under the Act and the Rules. With regard to an application
under section 78 for corrections, the First Schedule stipulates as under:
The First Schedule
(See rule 7)
FEES
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Number
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On what payable
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Number
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Amount of fee (in rupees)
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of Entry
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of the
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relevant
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form
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For natural persons(s)
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For
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other than
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natural
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persons(s)
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either
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alone
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or
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jointly
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with
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natural
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persons(s)
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1.
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2.
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3.
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4.
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5.
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*
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***
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*
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*
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*
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37.
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On a request for correction of
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500
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2,000
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clerical error
under section
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78(2).
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*
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***
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*
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*
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*
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31.
It may be noted that there is no
form prescribed for making a request for correction of clerical error under
Section 78 of the Act. The fee prescribed is Rs. 500/- for natural persons and
Rs. 2,000/- for other than natural persons.
32.
The petitioner, on 02.01.2010,
had given a letter requesting for correction, under Section 78 of the Act, of
the clerical error in the Form 18, wherein the petitioner had mentioned the
number of the Indian National Phase application as 6272/DELNP/2008 instead of
WP(C) 7850/2014 Page 14 of 20
5272/DELNP/2008. It may be noted that, in the originally filed request
for examination, the date of the application for grant of patent was correctly
mentioned as 18th June 2008 and the description of the patent was correctly mentioned as “IRIS
IDENTIFICATION
SYSTEM AND METHOD USING MOBILE DEVICE WITH
STEREO CAMERA”. Along with the request for correction, the petitioner
also paid the requisite fee of Rs. 2,000/-.
33.
Since there is no form prescribed
by the Act or the Rules for seeking correction under Section 78 of the Act,
even a letter would be sufficient. The petitioner along with the letter had
enclosed the corrected Form 18 and the corrected covering letter. The request
was made prior to the expiry of the period of 48 months. The requisite fee was
also paid thereon. There is no reason as to why the Respondents should not have
considered the same.
34.
The reason given in the counter
affidavit, that the Power of the Controller to correct clerical errors can only
be exercised or made to effect, when the patent application is in examination
procedure and on the date of filing of the request under Section 78 i.e. on
02.01.2010, there was no office action possible on the petitioner’s patent
application, is not tenable, in view of what has been noticed hereinabove with
reference to Sections 11 B, 12 of the Act and Rules 24B of the Rules.
35.
If the Respondents had struck to
the timelines for examination, the patent application would have been in the
examination procedure.
WP(C) 7850/2014 Page 15 of 20
Further, a request under Section 78 is not dependent on the examination
procedure or any office action on the patent application. If the request of the
petitioner for correction under Section 78 had been considered by the
respondents, there is no reason as to why the same was not liable to be
granted.
36.
The request for correction under
Section 78 of the Act was made before the expiry of the 48-month period, was
accompanied with the requisite fee and sought correction of what was clearly a
clerical error. Thus the action of the Respondents, in not considering the
request for correction, cannot be sustained.
37.
The contention, that the request
for correction made by the petitioner by letter dated 02.01.2010 (sic 02.01.2009) was not the proper
procedure to make corrections under the Act, is also not tenable in view of
what has been noticed hereinabove with reference to Section 78 of the Act.
Further contention that the request for correction made on 13.02.2012 was
beyond the statutory time period and by that time the patent application was
already deemed to have been withdrawn under Section 11B(4) is of no consequence
as by letter dated 13.02.2012, the petitioner had only reiterated the earlier
request dated 02.01.2010. The letter of 13.02.2012 was not even accompanied
with any fee, which fee had already been paid along with the request dated
02.01.2010.
38.
Further contention that as per
Section 11B of the Act any interested person, other than the applicant, can
also make a request on
WP(C) 7850/2014 Page 16 of 20
Form 18, so there was no reason to doubt that there
was any mistake or mismatch in the Form-18 submitted by the petitioner, is also
not substantiated from the record.
39.
Form 18 which is prescribed by the rules is as
under:
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FORM 18
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(FOR OFFICE USE ONLY)
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THE PATENTS ACT, 1970
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(39 of 1970)
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RQ.No:
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&
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Filing Date:
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The Patents Rules, 2003
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Amount of Fee Paid:
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REQUEST/EXPRESS REQUEST FOR
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CBR No:
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EXAMINATION OF APPLICATION FOR
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Signature:
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PATENT
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(See section 118 and rule 20(4)(ii), 248(1)(i)]
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1. APPLICANT
(S)/OTHER INTERESTED PERSON
(a) NAME:
(b) NATIONALITY:
(c) ADDRESS:
(d) date of publication of the
application under section 11A .... ...... ......... .
2. Statement
In case of request for examination made by the applicant(s)
I/We hereby request that my/our application for
patent no. ____________ filed on _______ for the invention titled
_______________________________ shall be examined under sections 12 and 13 of
the Act.
Or
I/We hereby make an express request that my/our
application for patent no. __________ filed on.
________ based on Patent Cooperation Treaty (PCT)
application no. ________ dated _____ _ made in country _________________ shall
be examined under sections 12 and 13 of the Act, immediately without waiting
for the expiry of 31 months as specified in rule 20(4)(ii).
3.
Statement in case of request for examination made by any other interested
person
I/We the interested person request for the examination of the application no. _______ dated
_________ filed by the applicant
_______________titled _______________ under sections 12 and 13 of the Act. As
an evidence of my/our interest in the application for patent following documents
are submitted.
(a)
______________________________
______________________________
4.
ADDRESS FOR SERVICE
Dated this ___ day of ____ 20
Signature Name of the signatory
To, The Controller of Patents
The Patent Office, at ____________.
NOTE:
*To be signed by the applicant(s) or by his
authorized registered patent agent *Strike out the column which is/are not
applicable
*For fee: See First Schedule
WP(C) 7850/2014 Page 17 of 20
40.
Perusal of Form 18 shows that
where a request is made by the applicant, then the statement is to be filled in
terms of Para 2 and if the request is made by any other interested person then
the statement is to be filled in terms of Para 3.
41.
The Petitioner had filled up Form
18 and had given the statement as prescribed by Para 2. When the petitioner had
specifically stated, in Form 18, that the request for examination is being made
by the Applicant and gave a statement in terms of Para 2 thereof, so how can
the respondents contend, that as any interested person other than the applicant
can also make a request on Form 18, there was no reason to doubt that there was
any mistake or mismatch in the Form-18 submitted by the petitioner. This
contention is further controverted by the email dated 30.01.2012 written by the
Assistant Controller of Patents to the Advocates of the Petitioner as under:
“This has come to my notice that
there is some discrepancy in documents filed in respect of patent application
5272/delnp/2008. I find it necessary to bring the same in your knowledge. Correspondence
dt 27.06.2008; dt 18.07.2008. Request in F-18 dt 30.06,2008, Form-5 which seems
to related your patent application 5272/deinp/2008 has been filed mentioning
patent application No 6272/delnp/2008, This application No 6272/delnp/2008 does
not belong to your firm.
As such your client/applicant may
have to face difficulty in meetings the timelines for filing of F-18.
This is for your information as
to take necessary remedy at your end.”
WP(C) 7850/2014 Page 18 of 20
42.
The email dated 30.01.2012
clearly shows that the error in Form 18 was an apparent clerical error and was
writ large.
43.
Further, the reliance placed by
counsel for the Respondent on the decision of a coordinate bench of this court
in NIPPON STEEL
CORPORATION (supra), to contend that the
Controller of patents is not competent to allow the application
for amendment after the patent application is deemed to have been withdrawn, is
misplaced. In
NIPPON STEEL CORPORATION, the petitioner failed to file a request for examination under
section 11 B within forty-eight months from the date of priority of the
application. Thereafter the Petitioner, therein, filed an application seeking
to amend the date of priority. It was held that the amendment could not be
granted as the application for amendment was filed after the original priority
date had already expired and the application for grant of patent had already
been deemed to have been withdrawn.
44.
The said judgment is not
applicable in the facts of the present case. In this case, the request for
examination was filed within the 48-month period and even the request for
correction of the clerical error was made prior to the expiry of the period of
48 months and prior to the application for grant of patent being deemed to have
been withdrawn.
45.
In view of the above, the action
of the Respondents in deeming the Indian National Phase application No.
5272/DELNP/2008 as deemed to be withdrawn, is set aside. The “Deemed to be
withdrawn”
WP(C) 7850/2014 Page 19 of 20
status of the application is accordingly quashed.
The application is restored and shall be treated to be pending. The clerical
error in the Request for Examination and its supporting documents, submitted by
the petitioner, shall be corrected and the Indian National Phase application
number referred therein shall be read as 5272/DELNP/2008. Any reference made
therein to Indian National Phase application No. 6272/DELNP/2008 shall be read
as Indian National Phase application No. 5272/DELNP/2008. The Respondents shall
proceed further with the application in accordance with law. There shall be no
orders as to costs.
April 20, 2017/ HJ SANJEEV SACHDEVA, J
WP(C) 7850/2014 Page 20 of 20
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