TMI Blog2008 (9) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court form the subject matter of challenge in this appeal. A learned Single Judge had set aside the order dated 28.12.2004 passed by the Controller of Patents and Designs (in short the `Controller') and remanded the matter to him for arriving at a fresh decision on the application of the writ petitioners for exclusive marketing right according to law that existed on 3rd May, 2002. The Controller was also asked to consider the report of the examiner dated 28.7.2000. 3. Background facts giving rise to the filing of the writ petition were as follows: The writ petitioners filed an application for grant of patent under Section 5(2) of the Patents Act, 1970 (in short the `Act') on 28th August, 1998. Subsequently, on 30th June, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union of India filed two appeals, while two others were preferred by a third party to the proceedings who wanted to be added as party-respondent in the writ application. The appellants raised a preliminary objection as regards maintainability of the writ petition after coming into operation of amendments into the Act w.e.f. 1st January, 2005. According to the appellants before the High Court, with effect from 1st January, 2005 there was no scope for further considering the question of EMR as Chapter IVA of the Act has been deleted and in Section 78 of the Amending Act, it has been specifically made clear that all pending applications for grant of EMR filed under Chapter IV- A of the Principal Act which were pending on 1st January, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand and the learned Single Judge by order dated 10.2.2006 set aside the order. The impugned order speaks of repeal. Reference is made to Section 24B(1) about the right having accrued. 5. Learned Counsel for the respondents on the other hand submitted that the intention of the statute appears to be to the contrary. therefore, the transitional provision clearly applies even if it is treated to be pending under Section 11B(3). 6. To the present case, Section 6 of the General Clauses Act, 1897 (in short the `General Clauses Act') applies. It reads as follows: 6. Effect of repeal:- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate tests conducted on or after the 1st day of January, 1995 in that country has been granted or after the date of making claim for patent covered under Sub-section 2 of Section 5; or (b) where an invention has been made in India and before filing search a claim, made a claim for patent on or after the 1st day of January, 1995 for method or a process of manufacture for that invention relating to identical article or substance and has been granted in India the patent therefore on or after the making the claim for patent covered under Sub-section 2 of Section 5, and has been received the approval to sell or distribute the article or substance from the authority specify in this behalf by the Central Government, then, we shall have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inchoate or contingent right and the same approach should be adopted to the interpretation of right , obligation or liability in Section 16 of the 1978 Act. The section clearly contemplates that there will be situations where an investigation, legal proceeding or remedy may have to be instituted before the right or liability can be enforced and this supports this approach. 9. The learned Single Judge's view that the provisions of Section 78 of the Amendment Act have no application to the proceedings which stood concluded before the appointed day appears to be the correct view governing the issue. Since the Chapter IV-A in question was merely repealed, the situation has to be dealt with in line with Section 6 of the General Claus ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
