Deemed Abandonment Provisions In The Indian Patent Act Are Likely To Be More Liberal - Ray Of Hope
Updated: Sep 13, 2022
Recently Hon’ble Delhi High Court in the matter of The European Union Represented by the European Commission Vs. Union of India & Ors. In Writ Petition No. W.P.(C)-IPD 5/2022 has held that the provisions which deals with the Deemed Abandonment because of the failure to meet timeline given under various provisions of the Indian Patent Act result into a great hardship on the Applicant.
After going through various patent provisions and precedents the Hon’ble Delhi High Court came to the conclusion that “The question of Abandonment is fundamentally a question of Intent, though express or implied by action or conduct. Abandonment is never presumed”.
Relying upon various decisions of different High Courts, the Hon’ble Delhi High Court came to the conclusion that the negligence by the Patent Agent or docketing error despite the fact that the applicant has been diligent should be condoned because this will amount to rare circumstance.
The Hon’ble Delhi High Court further held that inadvertent errors of Patent agents should be liberally considered by the Courts.
The Hon’ble Court has further said that “the consequences of patent being Abandoned is quite extreme i.e. the applicant is deprived of exclusivity for invention completely. In the opinion of the court, such a consequence ought not to visit the applicant for no fault of the applicant.
The Hon’ble Court further observed that, the mistake of the Patent Agent would be similar to the mistake of an advocate who may be representing his client in any civil or criminal litigation. Therefore any mistake committed by counsel, his client ought not to suffer.
The Hon’ble Delhi High Court further relied upon 161st report submitted by The Department Of Related Parliamentary Standing Committee On Commerce on 23rd July, 2021, titled as, “Review of The Intellectual Property Right Regime In India” which has recommended that certain flexibility should be incorporated in the Act, to make for allowance of minor error and lapses and to prevent outright rejection of Patents.
Hence, a review petition or fee may be permitted under the Act for bonafide mistake.
I personally feel as litigation counsel in the I.P.R field that it’s a very good judgement and it gives a ray of hope for a good change in the Indian Patent Regime where it deals with the circumstance of Deemed Abandonment.
R. K. AGGARWAL