The Parties
The Appellant is the applicant of the subject matter Trademark, while the Respondent is the controller of the Patent who has passed the impugned Judgment.

The Judgement Assailed
The present appeal impugns order dated 08th February, 2019 whereby the patent application of Appellant has been refused under section 15 of the Patents Act, 1970 inter alia on the ground of Section 3(f) of the Act.

Contention Of The Appellant
Appellant, argues that The impugned order is liable to be set aside due to a jurisdictional error in as much as objection under Section 3(f) of the Act was raised for the first time at the time of hearing held on 08th March, 2018, with no prior notice.

There has been a violation of the principle of natural justice vis-a-vis the Appellant.

The Appellant also relied upon a circular on “Examination of Patent Applications and Consideration of Report of Examiner by Controller” dated 21st September, 2011 and Judgment of Hon'ble High Court of Delhi having Neutral Citation: 2022/DHC/004092 titled as Otsuka Pharmaceutical Co. Ltd Vs The Controller of Patents in order to buttress its argument that no new ground can be raised at the time of hearing.

Observation Of The Hon'ble Court
When the hearing notice dated 12th February, 2018 was issued, there was no any mentioning of objection under Section 3 (f) of the Patent Act 1970.

The Hon'ble Single Judge found merit in contention of the Appellant that there was violation of the principle of natural justice.

The Appellant ought to have been made aware of all grounds of objection before the hearing and afforded sufficient opportunity to contest the same at the time of hearing.

It was incumbent upon the respondent to have raised this objection on the notice of the hearing.

the Objection under Section 3(f) of the Act has ex-facie been raised for the first time at hearing stage as is apparent from the afore extracted portion of the impugned order.

The Operative Portion Of The Judgement
The above-noted irregularity vitiates the impugned order and accordingly, the impugned order dated 08th February, 2019 is set aside and the matter is remanded back to the respondent for fresh consideration.

The Important Finding:
From reading the afore-mentioned judgment , it is apparent that the principle of natural justice is required to be followed even in the proceeding pertaining to the examination of a Patent Application.

The Case Law Discussed:
Case Title: Perkinelmer Health Science Inc and Ors Vs The Controller of Patent
Judgment date:04.01.2023
Neutral Citation No. N.A.
Commercial Appeal No.C.A.(COMM.IPD-PAT) 311/2022
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Sanjiv Narula, H.J.

Disclaimer:
This information is being shared in the public interest. It should not be treated as substitute for legal advise as there may be possibility of error in perception, presentation and interpretation of facts and law involved therein.

Written By: Ajay Amitabh Suman, IPR Advocate - Hon'ble High Court of Delhi.
Email: [email protected], Mob No: 9990389539