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Judgment
S. Usha, J
The Registry of this Board has raised the issue of maintainability of the appeal under section 117A of the Patents Act, 1970, against an order
passed under section 77 of the Patents Act, 1970, being an order in a Review Petition. The appellant herein submitted his explanation that the patent
application was refused under section 15 of the Act stating that the objection under section 10 of the Act was not complied with. The appellant
preferred a review under section 77(1)(f) which was also dismissed. Therefore, the appeal may be taken on record treating the appeal against an
order passed under section 15 read with section 77(1)(f) of the Patents Act, 1970. The matter was placed before the Board for deciding the issue of
maintainability. The Board had appointed Shri S.P. Chockalinagam, an Advocate as amicus curie to assist in deciding the issue as to whether an
appeal under section 117A shall be maintainable against an order of review under section 77(1)(f) of the Patents Act, 1970.
We heard Shri S.P. Chockalinagam. Shri S.P. Chockalinagam submitted that the order was passed on 07-07-2010 in the main matter. The appellant
had three months time to appeal against the said order. The appellants had filed a Review Petition under section 77(1)(f) & (g) of the Patents Act,
1970 read with Rules 130(1) & (2) of the Patent Rules, 2003 on 13-07-2010. The Controller passed the impugned order on 21-10-2011 against which
the appellants have preferred the instant appeal.
He submitted that as per section 91 of the Trade Marks Act, 1999, any order or decision is appealable. As per section 117A, only certain orders are
appealable and he placed before us a list of provisions that are appealable as under:-
Shri S.P. Chockalinagam referred to the judgment reported in and submitted that the appeal has been decided to be maintainable against an order in
a Review Application under the provisions of the Trade Marks Act, 1999, whereas this instant case has to be decided under the Patents Act, 1970.
Right of appeal is creature of statute and there is no inherent right of appeal unless rights are conferred on the appellant and power on the Court no
appeal can be filed. There is no provision under the Act to appeal against the Review order and therefore no appeal lies.
Right of appeal is not an inherent right, unless it is conferred by statute.
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
Shri S.P. Chockalinagam therefore submitted that the appeal is not maintainable as there is no provision under the Act.
The Learned Counsel for the appellant submitted that the appeal may be taken on record against the main order dated 07-07-2010 as there is merits
in the matter and that he has every chance to succeed in the matter.
The issue that arises for consideration is whether an order in a Review Petition is appealable under the Patents Act, 1970.
Section 116 of the Patents Act, 1970, provides for powers to do certain acts under the provisions of the Trade Marks Act, 1999. Section 117B deals
with the procedure and powers of the Appellate Board as per certain provisions of the Trade Marks Act, 1999.
Section 91 of the Trade Marks Act, 1999 deals with the appeals. Any person may prefer an appeal against any order or decision. Section 117A of
the Patents Act, 1970 does not give such option to file an appeal against any order. It restricts to certain provisions. Section 117A does not speak of
appeal against an order in a Review Petition - Section 77(1)(f).
Any order passed in a Review Petition is not appealable as per Order 47 R 7(1) of CPC.
Appeal is a creature of statute and is not an inherent right. Unless there is a specific provision for appeal there can be no appeal.
When there is no provision to appeal against a review petition then the appeal herein is not maintainable. Therefore, the appeal against an order
dated 21-10-2011 in a Review Petition is dismissed as not maintainable.
In the instant case, the appellant has preferred a Review Petition within seven days against the order passed under section 15 of the Act. The
main order is one passed under section 10 of the Act for non compliance. We are of the view that the appeal against the main order dated 7-7-2010
subsists but for the delay. It is therefore open to the appellant herein to file appeal against the main order dated 7-7-2010 along with an application to
condone the delay with necessary fees, if the appellant so desires. We appreciate Shri S.P. Chockalinagam for his effortless service in assisting this
Board to decide the issue of maintainability. Shri S.P Chockalingam has put in efforts to help us in deciding the matter.