Microsoft Corporation vs Assistant Controller Of Patents & Designs

K.N. Basha, J

This matter is posted today for maintainability on the question of bar of limitation as per the defect notice issued by the registry to the effect that the decision in this matter was rendered on 25/06/2014 and as per provision under Section 117A(4) of the Patents Act, 1970. The appeal shall be filed within three months from the date of the decision. But in the instant case, the appeal was preferred only on 07/10/2014 instead of filing on the date of expiry of the period on 07/01/2015.

The learned counsel for the appellant would made an endorsement to the effect that it is possible to file the appeal only on receipt of the order and they have received the order only on 04/07/2014 and the appeal was filed on 07/10/2014 within the period of three months from the date of receipt of the impugned order.

3 . In order to decide the said issue, the matter is directed to be posted before this Bench today. Mr. Anil Dutt, the learned counsel for the appellant would submit that the provision under Section 117A(4) of the Patents Act prescribing the period of limitation of three months from the date of decision, order or direction is to be construed as from the date of communication of the order. The learned counsel would submit that the authorities are issuing the orders only through speed post and the parties are receiving the same only after a few days and as such it is impracticable to file the appeal within a period of three months from the date of decision of the order. The learned counsel would also point out that as per the Rule 5 of the Intellectual Property Appellate Board (Patents Procedure) Rules 2010, every appeal filed shall be accompanied by the copies or the order atleast one of which shall be a certified copy and in view of Rule 5(2) which compels the appellant to file the order copy or a certified copy the appellant has to file such copies only after receiving the same and as such the provision under Section 117A(4) is to be read along with Rule 5(2). Therefore it is submitted that there is no illegality in computing the limitation of the prescribed period of three months from the date of receipt of the original order copy and as such the present appeal is filed well within the prescribed period of three months.

4 . The learned counsel in support of his contention would also place reliance on the decision of the Hon'ble Supreme Court reported in 2003 (6) SCC 186 - D. Saibaba v. Bar Council of India and Anr.

5 . The learned counsel would also produce the inward register maintained on the computers.

6 . We have given our careful and thoughtful consideration to the contentions put forward by the learned counsel for the appellant and also perused the materials produced before us and the decision relied by the learned counsel for the appellant.

7 . The crux of the question involved in this matter is that whether the proscribed limitation of time contemplated under Section 117A(4) stipulating the appeal shall be filed within three months from the date of the decision, order or direction is to be construed as from the date of the receipt or communication of the order or decision.

8 . In order to decide about the said issue, it is relevant to refer the following provisions 117A(4) of the Patent Act and also Rule 5(2).

"Section 117A. Appeals to Appellate Board.-

(4) Every appeal shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller or the Central Government or within such further time as the Appellate Board may, in accordance with the rules made by it allow.

THE INTELLECTUAL PROPERTY APPELLATE BOARD (PATENT PROCEDURE) RULES, 2010

Documents to accompany appeal or applications.-

(2) Every appeal filed shall be accompanied by the copies or the order, atleast one of which shall be a certified copy, against which the appeal is filed."

The reading of the provision under Section 117A(4) reflects that an appeal from the order or decision of authority shall be filed within a period of three months from the date of the decision or order.

The reading of Rule 5(2) on the other hand makes it abundantly clear that every appeal filed shall be accompanied by the copies or the order atleast one of which shall be a certified copy which means the appellant preferring the appeal shall file either the certified copy or original copy of the order or decision. It is not possible for an aggrieved party to file an appeal without the original or certified copy of the order or the decision as per provision under Rule 5(2) and as such we have to read the provision under Section 117A (4) along with the provision under Rule 5(2) and there should be a harmonious interpretation between the two provisions in order to protect the right of aggrieved party to file an appeal.

We are constrained to state that it is inherently impossible for any aggrieved party to prefer an appeal without the certified copy or original copy of the order or decision and if it is insisted that such aggrieved person has to file an appeal within the period of three months from the date of decision or order then it would amount to depriving his right to prefer an appeal. Ofcourse, it is possible for the aggrieved party to prefer an appeal by filing a condone delay petition. But in such an event it is incumbent on such person to show sufficient cause for the delay. In order to avoid such anomaly and unnecessary difficulty, it is always desirable to construe the provision under Section 117A(4) in respect of stipulating a period of limitation namely within a period of three months from the date of decision or order into within a period of three months from the date of receipt of communication of the order or decision.

The learned counsel has rightly place reliance on a decision of the Hon'ble Apex Court in D. Saibaba v. Bar Council of India and Anr. reported in 2003 (6) SCC 186. The Hon'ble Apex Court dealt with similar question involved in respect of the provisions of Advocates Act 1961. The Hon'ble Apex Court has incorporated the said provision as hereunder.

"5. Section 48AA of the Advocates Act, 1961 reads as under:--

"48AA. Review.- The Bar Council of India or any of its committees, other than its disciplinary committee, may of its own motion or otherwise review any order, within sixty days of the date of that order, passed by it under this Act."

Thereafter the Hon'ble Apex Court considered the question and held hereunder:

"8. We have heard the learned counsel for the appellant/writ- petitioner and the respondents, Bar Council of India and Smt. D. Anuradha, the complainant. At the hearing of the appeals it was urged that there was a doubt whether the Bar Council of India has committed an arithmetical error in calculating the period of limitation and therefore whether the review petition could at all be held barred by time. So, the learned counsel for the Bar Council of India sought to support the order dismissing the review petition on the alternative ground that on the language of Section 48AA, the Bar Council of India becomes functus officio on the lapse of 60 days from the date of the order and its jurisdiction to exercise power of review comes to an end, and therefore also the impugned order dated 26.8.2001 has to be sustained. However, the learned counsel or the parties agreed that the two questions relating to interpretation of Section 48AA are of frequent occurrence and the Bar Council of India is also feeling difficulty in several cases, and therefore desires both the questions may be answered by the Court. Accordingly, the appeals have been heard.

9 . So far as the commencement of period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression 'the date of that order' as occurring in Section 48AA has to be construed as meaning the date of communication or knowledge of the order to the review-petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.

10 . An identical point came up for the consideration of this Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr., MANU/SC/0386/1961 : . Section 18 of the Land Acquisition Act, 1894, contemplates an application seeking reference to the Court being filed within six months from the date of the Collector's award. It was held that 'the date of the award' cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words 'the date of the award' occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. the knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words 'from the date of the Collector's award' was held to be unreasonable. The court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated to the party or is known by him either actually or constructively.

The view taken in Raja Harish Chandra Raj Singh's case (supra) by two-Judges Bench of this Court was affirmed by a three-judges Bench of this Court in State of Punjab v. Mst. Qaisar Jehan Begum and Anr., MANU/SC/0191/1963 : . This Court added that the knowledge of the award does not mean a mere knowledge of the fact that an award has been made; the knowledge must relate to the essential contents of the award.

12 . In The Assistant Transport Commr., Lucknow and Ors. v. MANU/SC/0380/1979 : , Nand Singh, the question of limitation for filing an appeal under Section 15 of the U.P. Motor Vehicles Taxation Act, 1935, came up for the consideration of this Court. It provides for an appeal being preferred 'within thirty days from the date of such order'. The taxation officer passed an order on October 20/24, 1964 which was received by the person aggrieved on October 29, 1964. The appeal filed by him was within thirty days--the prescribed period of limitation, calculated from October 29, 1964, but beyond thirty days of October 24, 1964. It was held that the effective date for calculating the period of limitation was October 29, 1964 and not October 24, 1964.

13 . In Raj Kumar Dey and Ors. v. Tarapada Dey and Ors., MANU/SC/0018/1987 : , this Court pressed into service two legal maxims guiding and assisting the Court while resolving an issue as to calculation of the period of limitation prescribed, namely, (i) the law does not compel a man to do that which he could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us hereinabove. Any view to the contrary would lead to an absurdity and anomaly. An order may be passed without the knowledge of anyone except its author, may be kept in the file and consigned to record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be countenanced.

14 . How can a person concerned or a person aggrieved be expected the exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words 'the date of that order', therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed."

The Hon'ble Apex Court in the decision cited supra by placing reliance on a Catena decision of land mark cases rendered by the Hon'ble Apex Court earlier as clearly and categorically held that the words "the date of that order" mean and must be construed as meaning the date of communication or knowledge or actual or constructive of the order sought to be appeal and in the said case, the Hon'ble Apex Court categorically held that the expression "the date of that order" as occurring in Section 48AA has to be construed as meaning the date of communication or the knowledge of the order.

The above said decisions of the Hon'ble Apex Court the principles laid down in the decisions cited supra are squarely applicable to the crux of the issue involved in the instant case. It is seen that the present difficulty arising in each and every matter very frequently in respect of preferring an appeal before this Bench namely IPAB as it is inherently impossible for any aggrieved party to get the communication or receipt of the order immediately or forthwith on the date of decision and as a result there is a flood of filing condone delay petition causing further delay in numbering the appeal and entertaining the same for arguments and ultimate decision. In our view such cumbersome process would result in undue delay causing grave miscarriage of justice.

Now coming to the instant case by applying the above said principle of construing the period of limitation contemplated under Section 117A (4) namely three months from the date of decision is to be construed as three months from the date of communication or receipt of the order the appeal is not barred by limitation and the same is maintainable. However, we are making it very clear that even in such an event of making the above said interpretation of Section 117A(4), it is the burden of the appellant to produce documents to establish that they have received the impugned order on such and such date. This bench has been informed that patent office is dispatching the orders or decisions through speed post and on receipt of the same the aggrieved party preferring the appeal shall produce the authenticated documents to show or to establish that they have received the said decision or order copy on such and such date.

As far as the instant case is concerned, the appellant herein has produced their inward register maintained on their computer and they have also produced the copy of the same and as per the registrar, it is seen that they have received the decision or order copy on 04/07/2014 and the fact remains that they have filed the appeal on 07/10/2014, and as such the present appeal is filed well within the time contemplated under Section 117A(4) read along with the Rule 5(2) of the Patent Rules. Accordingly, the registry is directed to number the appeal if the appeal is otherwise in order.