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IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 3742/2013 and CM 4197/2014
NITTO DENKO CORPORATION ..... Petitioner
Through Mr Praveen Anand, Advocate.
versus
UNION OF INDIA and ORS ..... Respondents
Through Mr Sanjay Jain, ASG with
Mr Sanjeev Narula, CGSC and
Ms Noor Anand, Mr Ajay Kalra,
Advocate for UOI.
Ms Prathiba M. Singh, Sr. Advocate
Amicus Curiae in the matter.
AND
W.P.(C) 3756/2013 and CM 4196/2014
NITTO DENKO CORPORATION ..... Petitioner
Through Mr Praveen Anand, Advocate
versus
UNION OF INDIA and ORS ..... Respondents
Through Mr Sanjay Jain, ASG with
Mr Sanjeev Narula, CGSC and
Ms Noor Anand, Mr Ajay Kalra,
Advocate for UOI.
Ms Prathiba M. Singh, Sr. Advocate
Amicus Curiae in the matter.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
O R D E R
09.10.2014
The grievance raised by the petitioners in the present petitions is
the delay being caused by the respondents in the examination of their
patent applications and non-adherence to the time schedule provided under
Rule 24B of the Patents Rules, 2003 (hereafter the ?Rules?).
By an order dated 20.11.2013, the Controller of Patents was
directed to file an affidavit disclosing the steps being taken by them
for compliance of the mandate prescribed under Rule 24B of the Rules. The
operative portion of the said order is extracted below:-
?The Controller of Patents is directed to file an affidavit disclosing
therein the steps which the respondents are taking to ensure that the
mandate of Rule 24B(2) and (3), as regards the time prescribed for
processing the applications, is observed by the Patent Office. The
affidavit shall also disclose year-wise pendency of the applications as
on 31.10.2013 as also the time which the Patent Office expects to take to
clear the backlog of such applications.?
The Controller of Patents filed its affidavit dated 27.11.2013
disclosing the steps being taken and the steps which are required to be
taken to clear the backlog in a time bound manner.
Thereafter, the government appointed a committee on 26.12.2013
consisting of the following members:-
1. Secretary, Department of Industrial Policy and Promotion ? Chairman
2. Joint Secretary, Department of Industrial Policy and Promotion ? Member
3. Joint Secretary, M/O Law and Justice - Member
4. Representative of Mr Rajeev Mehra, Additional Solicitor General, Delhi
HC - Member
5. Representative at the level of Joint Secretary From Department of
Expenditure - Member
6. Representative at the level of Joint Secretary From Department of
Personal and Planning - Member
7. Representative at the level of Joint Secretary From Planning
Commission - Member
8. Controller General of Patents, Designs and Trademarks - Member
The terms of reference for the committee were as follows:-
?a. to come out with a programme for time-bound disposal of the pending
patent applications.
b. to suggest ways and means to ensure that fresh applications can be
decided within the statutory time limit fixed in this regard.?
The said committee held its meetings on 17.01.2014 and 27.02.2014
and submitted its report dated 13.03.2014. A perusal of the report
indicates that the government has taken some measures to reduce the
pendency of the patent applications by increasing the required number of
manpower. However, it is to be noted that the said measures would not be
sufficient to reduce the pendency to the level where the Controller of
Patents can issue the examination reports within the prescribed period.
Thereafter, the parties were directed to suggest the ways to clear
the back log of pending applications in a time bound manner. The said
suggestions were exchanged by the parties. After considering the report
of the committee dated 13.03.2014 and the suggestions made by the
parties, following directions are issued to the respondents:-
1. The Ministry of Commerce and Industry and other concerned Ministries
to take urgent steps so that posts proposed in the plan scheme of
Modernisation and Strengthening of Intellectual Property Offices (MSIPO)
could be created within a period of 9 months to enable issue of first
examination reports within reasonable time.
2. The Government to consider additional outlay apart from Rs.309.6
crores already approved by the cabinet Committee under the 12th Plan for
creation of further posts of Examiners and Recruitment/Training of the
newly recruited examiners.
3. The Government will further expedite the creation of posts sought
under the 12th Plan in consultation with Department of Expenditure and
Department of Personnel and Training within a period of 9 months.
4. The DIPP/Government may explore alternative methods of recruitment of
examiners through UPSC, IITs or by using the second obtained through
GATE/NET examination.
5. It is also directed that efforts should be made to ensure that the
Flexible Complementing Scheme as approved by the committee is implemented
at the earliest in consultation with other concerned departments specially Department of Personnel and Training and the Department of
Science and Technology for immediate implementation in the Indian Patent
Office in order to resolve the issue of attrition.
6. The Government is also directed to constitute a committee to consider
the following ?
(i) If expedited examination is not considered feasible, whether waiver
of maintenance fee for the delayed period or other measures could be
considered in order to compensate the patentees for the time consumed in
the examination process?
(ii) As to whether the examination of patents applicants could be
carried out of turn under the existing provisions of the Patents Act,
1970 and Rules made thereunder and if so, under what circumstances? What
factors and terms and conditions to be considered for expedited or out of
turn examination?
The said Committee shall submit its report on or before 28.02.2015.
The writ petitions and the pending applications are disposed of in the
above terms/directions.
VIBHU BAKHRU, J
OCTOBER 09, 2014
RK
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