Delhi HC orders ACGP to undergo course at Delhi Judicial Academy

Recently the Delhi High Court ordered the Assistant Controller General Of Patents (ACGP) to undergo a course at Delhi Judicial Academy (DJA). ACGP will have to learn how to pass judicial orders at the DJA.

The officer in question had denied a patent application in a haphazard manner. The rejection order did not even do the bare minimum of providing reasoning for the same. Moreover, most of the materials in the order were copied and pasted from earlier proceedings. “Though such cutting and pasting is itself disquieting, the Court would not have taken serious note thereof, had the ACGP condescended to supplement the cut and pasted paragraphs with his own reasoning, displaying some minimal application of mind.” said the Delhi HC.

In 2007, Synthes GMBH, the appellant had filed an application for grant of patent in respect of “Bone Fixation Apparatus”. It took 8 years for the Office of the Controller of Patents to issue the First Examination Report (FER). The appellant entity filed its response in July 2016. In November and December of 2019, hearing and written submissions took place.

On 8th October 2020, ACGP passed an order rejecting the grant of patent to Synthes GMBH.

However, the manner in which order was passed did not satisfy the conscience of Justice C Hari Shankar. His displeasure can be gauged from the fact that in his order, screenshots of badly formulated and written order of ACGP are present. He lamented the fact that ACGP did not type the order and instead simply cut and pasted paragraphs from the documents.

The High Court (HC) wanted to take a liberal approach to it, but got further frustrated with the fact that ACGP did not apply his own reasoning.

It also pointed out a submission by Mr. Vineet Rohilla, counsel for appellant. ACGP had reproduced objections contained in FER. In paragraphs 2 and 6, they were again reproduced. Replies filed by Synthes GMBH were not even considered.

The learned Justice even deconstructed the order in point-by-point manner. He termed paragraphs 1,2 and 4 as cut and pasted material. Paragraph 3 was formal while Paragraph 5 was incomprehensible. Paragraph 6 rejected the appellant's application without giving any reasoning. Commenting on this bizarreness, the HC said, “Thereafter, the impugned order declares, without prelude or preface, that the claim of the appellant did not comply with Section 2(1)(j)1 of the Patents Act. Why, is left for anybody to guess.”

Moreover, ACGP had rejected the applications under Section 10(4) and Section 59. Justice Shankar observed that these objections were not even raised.

He termed the whole order as “nothing less than a total mockery of the functions”. Justice Shankar noted that it was fourth case in which such an order had come before the court.

The HC interacted with the Controller General of Patents (CGP). The CGP succeeded in conveying the message that he wants to ensure proper functioning of the patent office. However, quoting poet Robert Burns, Justice Shankar also said that lackadaisical approach by his lower functionaries may end up in failure to bear fruit. “The best laid schemes of mice and men”, as the poet Robert Burns however lamented, “gang aft agley” , said the Court. It further requested the CGP to ensure that the post is not discredited due to more such orders.

Regarding loss to the appellant entity, the Court said that out of 20 years of life of patent, 13 years have already been lost. That is because 20 years is counted from the day of application and not from the day of patent. In this case, an application was filed in 2007. Even if it is granted today, the life span of a patent will be only 3 years.

Terming these kind of stuff as harmful to national interest, the HC added, “If inventors, who seek to invent patents, are going to suffer such treatment, it would ultimately disincentivise persons from exercising their inventive faculties and coming with new and innovative technologies which would ultimately be deleterious to the national interest as well.”

He warned that if such a phenomenon persists, the Court will take drastic steps which could prove to be detrimental to the officer who passed this order. In the current case, Justice Shankar set aside the order and directed a fresh proceeding. Moreover, CGP has been asked to not assign the matter to the same officer named Mr. Ashlesh Mourya.

He will undergo a course in passing of judicial orders at DJA. The Controller General of Patents has been asked to ensure that.