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Judgment
Manmohan Singh, J
The appellant in the above matter has filed above named, prefers an appeal under Section 117 A, against the order dated 20th May 2020. That the
Assistant Controller of Patents has not granted a Patent on patent application number 2816/KOLNP/2011.
FACTS OF THE CASE
2.1 The Appellant LG Electronics Inc., had filed patent application no. 816/KOLNP/2011 on 5th July, 2011 at the Patent Office, Kolkata.
2.2. First Examination Report (FER) related to the subject application was issued on 22nd September, 2017, and response to the FER was submitted
on 14th March, 2018.
2.3. Pursuant to filing a response to the FER, a hearing notice was issued on 3rd March, 2020, annexed herein and marked as ""Annexure B"", fixing a
hearing on 16th March, 2020 at 11.30 a.m., giving the Appellant/Patent Applicant only 12 days notice.
2.4. The authorized patent agent of the Appellant attended the hearing before the Controller on the scheduled date and time.
2.5. At the hearing, the substantive objections were discussed in detail with the Controller, and the authorized patent agent of the Appellant agreed to
amend the claims as asked for by the Learned Assistant Controller at the hearing:
Under Sub Rule (7) of Indian Patent Rule (28), pursuant to the hearing written note of arguments along with relevant documents was required to be
filed within 15 days from the date of the hearing, i.e. by 31st March, 2020.
The nation-wide lock-down on account of COVID-19 pandemic came into force from 24th March, 2020, which rendered it absolutely impossible for
the Appellant/Applicant to file, through its authorized patent agent, written note of arguments within the stipulated 15 days, i.e. by 31st March, 2020.
On 20th May, 2020 the Controller passed order in the subject proceeding refusing application no. 2816/KOLNP/2011 under Section 15, on the sole
ground that written note of arguments was not submitted within 15 days from the date of the hearing. The decision of 20th May, 2020 was sent to the
authorized patent agent by email of same date.
The said order has been challenged before us.
It is the admitted position that the State of West Bengal had enforced a strict lock-down till end of May 2020, and relaxed the lock-down norms
partially from week starting 18th May, 2020.
It is stated on behalf of the appellant that the authorized patent agent of the Appellant/Applicant, that was the earliest opportunity to visit her office
(which is located in Kolkata, West Bengal), for just a few hours to access case files and prepare the written note of arguments. Unfortunately, from
the afternoon of 19th May till 21th May, 2020, the entire city of Kolkata and its neighbouring districts were closed down and all activities came to a
standstill because of the super cyclone ""Amphan"". The super cyclone caused extensive and severe damage to the city of Kolkata and completely
disrupted all communication/Internet systems. As a result, the authorized patent agent of the Applicant could download the email with the decision of
the Controller only on 23rd May, 2020, Friday.
The authorized patent agent of the Appellant/Applicant filed the written note of arguments on 28th May, 2020 along with a petition of condonation of
delay under Sub-Rule (6) of Rule 6 of the Patents Rules, i.e. as soon as she was realistically able to do so. On 29th May, 2020, the authorized patent
agent wrote to the concerned Assistant Controller, (Respondent No. 1), Controller General of Patents, Designs & Trade Marks (Respondent No. 2),
Senior Joint Controller of Patents, and other concerned Controllers of Indian Patent Office, requesting withdrawal of the decision dated 20th May,
2020 issued by the Respondent No. 1.
It is stated that despite of said information no response has been received from the Indian Patent Office, till now. Not one of the officials of the Indian
Patent Office, particularly the Controller General of Patents, Designs & Trade Marks (Respondent No. 2), has taken any step to remedy the gross
injustice.
It is alleged that since no option is left, the appellant has filed the present appeal.
Two legal issues are emerged in the facts of present case. Firstly whether under Rule 7 of Rule 28 is mandatory provision for filing the written-
submission of the party after hearing and secondly, whether the respondent was justified to reject the application during lock down period by not
extending the time for filing the written submission.
Rule 7 of Rule 28 reads as under:
In all cases of hearing, written submissions and relevant documents if any shall be filed within fifteen days from the date of hearing.
It is clear from reading of the said rule that it is optional and no mandatory. The consequence of non-filing of written submissions are not
prescribed. The present application was rejected solo on this ground.
If written submissions are not filed in time or otherwise, it is the duty of the respondent to decide the matter on merit. The respondent is not
empowered to reject the application on this ground. Thus the impugned order is bad and against the law.
Now come to the second issue, it is admitted position that due to the unprecedented situation caused due to the COVID-19 pandemic around the
world, the Government of India had previously declared the countrywide lockdown for 21 days i.e. till April 14, 2020. However, keeping the present
situation in mind, the Government of India vide MHA order No. 40-3/2020-DM-1(A) dated May 1st, 2020 has further extended the lockdown till May
17, 2020. The order reads as under:
The Supreme Court of India has ordered to suspend all deadlines till further order/s to be passed by the Hon'ble Supreme Court. The order dated
March 23, 2020 is suo moto writ petition (CIVIL) No(s) 3/2020, which reads as under:
The Intellectual Property Offices have issued a public notice that states that in view of the fact that all the IP offices in India are located in Red
Zone (Hotspots), the due dates with respect to timelines/periods prescribed under the IP Acts and Rules administered by the office of Intellectual
Property towards completion of various acts/proceedings, filing of any reply/document, payment of fees, etc. in the matters of any IP applications filed
with the offices under the administrative control of the office of the CGPDTM falling due between the above said lockdown period (between March
25th, 2020 (inclusive) to May 17th, 2020 (inclusive), shall be may 18, 2020. The public notice reads as under:
As there was an inconsistency in the notification issued by the office of the Intellectual Property when compared with the order passed by the
Hon'ble Supreme Court, a writ petition (CIVIL) no. 3059/2020 was filed by the Intellectual Property Attorneys Association before the Hon'ble Delhi
High Court on May 11, 2020, the Hon'ble Delhi High Court passed an order suspending the operation of the latest circular issued by the office of the
Intellectual Property dated May 4, 2020 and has directed the office to comply with the Hon'ble Supreme Court order dated March 23, 2020.
Accordingly, all deadlines before the IP offices administered by the office of CGPDTM stand extended w.e.f. March 15, 2020 till further orders are
passed by the Hon'ble Supreme Court which is reproduced as under:
The Hon'ble Supreme Court of India, vide its order dated 10/07/2020, passed Suo Moto writ petition (C) No. 3/2020, has extended all periods of
limitation prescribed under the Arbitration and Conciliation Act, 1996 w.e.f. 15.03.2020 till further orders. The said order also applies for extension of
the time limit prescribed under Section 23(4) of the said Act for the completion of the statement of claim and defence. A copy of the order dated
10.07.2020, passed by the Hon'ble Supreme Court of India in Suo Moto Writ Petition (C) No. 3/2020.
Thus the Respondent No. 1's decision violates the order dated 23rd March, 2020, passed by Hon'ble Supreme Court of India in SUO MOTU
WRIT PETITION (CIVIL) No(s). 3/020 and orders dated 11th May, 2020 and 21st May, 2020 passed by the Hon'ble Delhi High Court in W.P. (C)
No. 3059/2020.
In the light of above, the impugned order of Respondent No. 1 is quashed by allowing the present appeal. The appeal is allowed. The matter is
remanded back.
The Respondent No. 1 is to fix fresh date of hearing and after hearing and submission, fresh decision be delivered on merit within three months.
The hearing date shall not fixed on the day when lock-down is declared by the state Government meaning thereby date be fixed when there is no lock-
down. If the same hearing officer is not available, it may be heard by another hearing officer.
No cost.