As per the petition, Section 11-A(7), which confers certain additional privileges on an applicant for a patent in the period between the filing of the application and publication was contrary to the provisions of amended Section 53.
The only rider in Section 11, the Court noted, is that the applicant shall not be entitled to introduce any proceeding for infringement until the patent has been granted.
“The statute as it originally stood conferred no additional right on an applicant for the period from the date of publication till grant of patent but equated the periods between date of application and publication on the one hand and date of publication and grant on the other. Such conferment of additional rights on publication, which are limited in nature in as much as no litigation for infringement can be instituted, is entirely within the domain of legislative discretion,” the judge held.
A careful perusal of the scheme under the Patents Act, as reflected in Sections 45 and 53, shows that the date of patent in sub-section (1) of Section 45, akin to Section 53(1), is the date on which the application for patent was filed, the Bench noted.
“There is no contradiction between Sections 45 and 53 as both contemplate, in consonance with each other, that the date of commencement of a patent shall be the date of the application and the term of the patent is 20 years from the date of such filing of the application. Since the TRIPS Agreement binds our country as a signatory thereto, the introduction of 20 years’ term was in tune with the same.”
With these observations, the Bench dismissed the petition.
Source: Barandbench
