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Bayer Aktiengesellschaft of Leverkusen Federal Republic of Germany Vs. Controller of Patents, Government of India - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights;Limitation
CourtKolkata High Court
Decided On
Case NumberPatent Act Matter No. 2564 of 1980
Judge
Reported inAIR1982Cal30
ActsPatents Act, 1970 - Sections 2(1)(I) and 71; ;Limitation Act, 1963 - Schedule - Article 137
AppellantBayer Aktiengesellschaft of Leverkusen Federal Republic of Germany
RespondentController of Patents, Government of India
Appellant AdvocateLall, Adv.
Respondent AdvocateN.C. Roy Chowdhury, Adv.
DispositionApplication dismissed
Cases ReferredTrivandrum v. T.P. Kunhaliumma). In
Excerpt:
- .....the respondent, however, wrongly classified this product as a 'drug' and fixed the period of the patent for 7 years from the date of the sealing. according to the petitioner the period of this novel compound should have been 14 years by virtue of the provision of section 53 of the act. hence this application for rectification of the register by deleting 7 years and inserting in its place 14 years.3. the respondent filed an affidavit-in-opposition affirmed on 12-1-1981 by one shanti kumar joint controller of patents and designs. according to the respondent this compound is a medicine or drug within the meaning of section 2(1)(1) of the patents act 1970 and as such the period of patent should be limited to 5 to 7 years from the date of sealing or the date of the patent whichever term is.....
Judgment:
ORDER

Pratibha Bonnerjea, J.

1. This is an application Under Section 71 of the Patents Act 1970 for rectification of the entry relating to Patent No. 139978 in the register of the respondent. This application is contested by the respondent.

2. It is alleged in the petition that Chlorothio-N-Phthalimide is a novel compound and is a new intermediate product suitable for producing various products such as herbicidai compounds or auxiliary agents for rubber. This compound can also be used in the preparation of other compounds which in turn can be used in the treatment of disease in human beings and animals. But this compound by itself is not intended nor is capable of being used as a drug or medicine as defined in Section 2(1)(1) of the Act. The respondent, however, wrongly classified this product as a 'drug' and fixed the period of the patent for 7 years from the date of the sealing. According to the petitioner the period of this novel compound should have been 14 years by virtue of the provision of Section 53 of the Act. Hence this application for rectification of the register by deleting 7 years and inserting in its place 14 years.

3. The respondent filed an affidavit-in-opposition affirmed on 12-1-1981 by one Shanti Kumar Joint Controller of Patents and Designs. According to the respondent this compound is a medicine or drug within the meaning of Section 2(1)(1) of the Patents Act 1970 and as such the period of patent should be limited to 5 to 7 years from the date of sealing or the date of the patent whichever term is shorter, under the provision of Section 53(1)(a) of the said Act. Classification of this compound and its 7 years term have been correctly done in accordance with this Act. The respondent further stated that the petitioner as a patentee did not raise any objection when the patent document was issued to him on 28-6-1977 providing for 7 years time from 5-5-1974. This belated application is barred by limitation.

4. According to the respondent's counsel, the application under Section 71 of the Act would be governed by the residuary Article 137 of the Limitation Act of 1963 and as such the application should have been taken out within 3 years from the date of receipt of the patent documents on 28-6-1977 when his right to apply accrued. This application was made on 1-12-1980 and was out of time. The counsel for the petitioner submitted that the Act was a complete and a self-contained Code and in respect of any application under this Act, the Limitation Act of 1963 would not apply. Insupport of his contention he relied on : [1969]1SCR679 (K. Venkateswara Rao v. Bekkam Narasimha Reddy). This is a case on Representation of the People Act of 1951 as amended in 1966. The Supreme Court after construing different sections of this Act held that the Act was a complete and a self-contained Code which did not admit of the introduction of the principles or the provisions of law contained in the Limitation Act. The petitioners' counsel also construed various sections of the Patents Act. of 1970 and incited my attention to the provisions of different sections to show that whenever this Act wanted to out a time limit, the relevant sections have made express provisions for the same. Therefore Limitation Act of 1963 would have no application. According to him there was no time limit for an application under Section 71 of the Act. The next case relied on by him was : [1974]3SCR31 (Hukumdev Narain Yadav v. Lalit Narain Misra). This was also a case on Representation of the People Act 1951 and it was held that the Act being self-contained and complete, the provision of Section 5 of the Limitation Act would not apply. He also cited AIR 1942 All 429 (FB) (Raja Pande v. Sheopuian Pande) where a Division Bench of that High Court had held that the Provincial Insolvency Act was a self-contained Act and Limitation Act of 1908 would not apply.

5. The respondent's counsel Mr. N.C. Roy Chowdhury invited my attention to Section 71 of the Patents Act 1970 which provided that an aggrieved party may apply to the High Court for rectification of the register of patents. He submitted that if any special or local law did not prescribe any time limit for an application to be made to a court under that Act. the application would be governed by Article 137 of the Limitation Act of 1963 and in support he relied on : [1977]1SCR996 (The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma). In that case the question arose whether a petition under Section 16(3) of Telegraph Act would fall within the scope of Article 137 of the Limitation Act 1963 or not. It was held in that case (at p. 286) :

'The changed definition of the words 'applicant' and 'application' contained in Sections 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Lami-tation Act to include petitions, original or otherwise under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Arts, in Part I of the third division. Article 137 includes petitions within the word 'applications'. These petitions and applications can be under any special Act.'

6. In my opinion, the decision reported in : [1977]1SCR996 puts an end to the controversy regarding applicability of 1963 Limitation Act to special laws or local laws. There is no doubt that in this case Article 137 will apply as no time limit was put by the Act itself and this application has to be made to the High Court. This application should have been made within 3 years from the date when the petitioner's right to apply accrued. It was not disputed by the petitioner that the relevant patent was sealed on 23-4-1977, recorded in the register on 4-6-1977 and the Patent documents were issued to the petitioner on 28-6-1977. This application made on 1-12-1980, was clearly beyond three years from the date of accrual of right to apply and is barred by limitation on the face of the application.

7. So far as the merit of this application is concerned, I find that the petitioner had submitted a complete specification along with its application to the respondent where the petitioner had alleged :--

'Chlorothio-N-Phthalimide is a new intermediate product which by virtue of its reactive group is suitable for producing various end products such as her-bicidal compound or auxiliary agents for rubbers.'

8. The provisions of Section 2(1)(1) of Patents Act 1970 are as follows :--

(1) 'Medicine or drug' includes-

(i) to (iii).....

(iv) insecticides, germicides, fungicides, weedicides and all other substances, intended to be used for the protection or preservation of plants,

(v) all chemical substances which are originally used as intermediates in the preparation or manufacture of any of the medicines or substances above referred to.' .

9. During hearing, a printed copy of the complete specification was shown tome and the same was kept in the recordsof this case.

10. The petitioner's counsel, tried to distinguish between the words 'herbici-'dal' used in the complete specification and 'weedicide' mentioned in Section 2(1)(1)(iv) of this Act. Accordingly to him 'herbicidal' is a much broader term than 'weedicide'. Herbicidal distroys all herbs whereas weedicide destroys only weeds.

11. In Webster's New World Dictionary, the meaning of the word 'herbicide' is given as follows :--

'any chemical substance used to destroy plants esp. weeds'.

12. It is therefore, clear that a 'herbicide' is also a 'weedicide'. in my opinion the respondent had correctly classified the product and had fixed the term of the patent in accordance with the provisions of Section 53(1)(a) of the Act.

13. For all the reasons mentioned above, the application fails. The petitioner is to pay the cost of this application to the respondent.


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