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Non-Appealability of Orders under Section 21(1) of the Patents Act 1970


The question arose before the Hon'ble High Court of Bombay regarding the appealability of orders made under Section 21(1) of the Patents Act 1970 in this case. This article aims to dissect the legal intricacies surrounding this issue, focusing on the interplay between Section 21(1) and Section 117A of the Patents Act.

The Patents Act 1970 serves as the primary legislation governing patents in India. Section 21(1) of the Act empowers the Controller of Patents to raise objections against patent applications if they fail to comply with FER [First Examination Report]. Conversely, Section 117A provides for the mechanism of appeals against certain orders made under the Act, provided the orders are passed under Section 15 of the Patent Act 1970.

Legal Analysis:
The crux of the matter revolves around the interpretation of Section 117A vis-�-vis orders issued under Section 21(1). The contention raised by the respondent, supported by the court's observation, underscores the non-appealability of orders falling under the purview of Section 21(1). This conclusion stems from the explicit language of Section 117A, which does not envisage appeals against such orders.

The court's rationale for upholding the respondent's preliminary objection is multifaceted. Firstly, it underscores the absence of a statutory provision explicitly allowing appeals against Section 21(1) orders. This absence suggests a legislative intent to exclude such orders from the appellate ambit. Secondly, the court highlights the petitioner's failure to address all objections raised in the First Examination Report (FER), signaling non-compliance with procedural requisites.

Non-Appealability of Orders under Section 21(1) of the Patents Act 1970:
The court's ruling carries significant implications for patent applicants and practitioners alike. It reinforces the importance of meticulous compliance with statutory requirements, particularly those delineated in Section 21(1). Failure to adhere to these requirements not only exposes applicants to the risk of adverse orders but also precludes the avenue of appellate recourse, as orders passed under Section 21 (1) of the Patent Act 1970 are non Appealable under Section 117 A of the Patent Act 1970.

The decision underscores the need for a comprehensive approach to addressing objections raised during patent examination. Merely cursorily addressing one objection while neglecting others, as exemplified in this case, is unlikely to suffice. Patent applicants must diligently engage with all objections to maximize the prospects of successful application prosecution.

The non-appealability of orders issued under Section 21(1) of the Patents Act 1970 underscores the need for precision and thoroughness in patent application procedures. The court's adherence to statutory interpretation principles, coupled with a pragmatic assessment of procedural compliance, sets a precedent that resonates within India's patent law landscape. Moving forward, stakeholders must navigate these legal intricacies with diligence and precision to safeguard their patent interests effectively.

The Case Discussed:
Case Title: Sonalkumar Sureshrao Solanke Vs The Assistant Controller of Patents
Judgment/Order Date: 30.04.2024
Case No:Commercial Misc. Petition 8 of 2022
Neutral Citation: 2024:BHC-OS:7309
Name of Court: Bombay High Court
Name of Hon'ble Judge: Firdosh P. Pooniwalia.H.J.

This article is meant for informational purposes only and should not be construed as substitute for legal advice as Ideas, thoughts, views, information, discussions and interpretation perceived and expressed herein are are subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue of law involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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