Law and Justice

Posts Tagged ‘Patent’

The nation’s top court has issued its long anticipated opinion rejecting the patentability of

the controversial Bilski case. The decision is both surprising for what it does and for

what it does not do. The Justices did not offer a clear interpretation as to what constitutes

patentable subject matter in the narrow classification known as ‘business methods.’ But

they did clarify certain points of the lower court’s ruling. Inventors and businesses

seeking patent coverage are well advised to study the oracles emanating from the

Supreme Court in order to get a patent that can pass muster in the existing case law.

The field of ‘business method’ patents includes a variety of transactions having to do

with commerce, banking, taxation, electronic transaction processing and more. Patents

have been granted in this field for at least two centuries before the present case even saw

the light of day. However, the policy of the government agency overseeing patents, the

United States Patent & Trademark Office (USPTO), has evolved from those earlier grants

to one that assumed that patents could not be granted for these very same methods.

Since the advent of the web, a rainstorm of patents claiming financial transaction

processing began to arrive at the doors of the USPTO forcing a change in direction. The

patent office was compelled by the deluge to examine numerous cases having both a

technological application as well as crossing the line into financial processes that it would

have preferred not to. As a matter of daily practice, the office simply instructed

examiners not to evaluate a patent application to determine if it could be a business

method or not. This would change when the Federal Circuit Court decided the landmark

State Street Bank decision (1998).

This decision swung open the gates of what could be patented generating a chorus of

complaints against State Street even though many informed observers point out that it

may not have been entirely responsible after all. In any case, the Federal Circuit did

indeed indicate that an invention would be eligible for a patent if it involved some

practical application and produced a useful, concrete and tangible result. The US Patent

Office responded by making it part of their official policy to require a technological

connection for the method to be patentable. In doing so, the agency overstepped the

bounds of its constitutional mandate since it could not be proved that these requirements

existed in the current body of law (Ex Parte Lundgren, BPAI 2005).

In the year 2008 business methods hit a brick wall with the Federal Circuit’s Bilski

decision wherein business methods were rendered patentable only if they passed certain

tests. In particular, the Federal Circuit indicated that processes transforming an item

from one thing into another are patentable and that those processes not having a

transformative step may be granted a patent if attached to a machine. This nebulous two-

prong test left many patent attorneys scratching their heads since what items could be

considered transformable was left clouded in mystery. The transformation of minerals

with the application of mercury into silver dust was clearly a patentable item but how

about the manipulation of financial information in a computer register through a complex

financial algorithm? Could this be considered an item under transformation?

Additionally, what constituted a machine that could render non-transformative processes

into patentable processes? Nor was there an answer to the most basic question of

whether or not the machine itself had to be unobvious or would the blending of the

machine with the non-transformative process be sufficient to permit patentability?

All of these questions were in play when the highest court prepared to decide Bilski. To

some observers its recent decision to reject the patentability for a method of hedging risks

because it represented an abstract concept left many unanswered questions. In doing so it

modified the Federal Circuit’s opinion in a variety of ways. In particular and most

importantly, the Supreme Justices ensured that the lower court’s test involving a machine

or transformation was utilized only as a test of patentability, not as a general rule for

denying protection. Inventions that do not pass this test may still be patentable under the

new decision; as a consequence, inventors having an idea that neither is attached to a

machine nor transforms an item still might be eligible for a patent grant.

Adding to the confusion were four Justices who indicated that they believed that

historically speaking, business methods were not favored with a patent and that the

practice of not patenting them should continue. Another four of the Justices contradicted

the first set by stating that the opposite was true; that indeed certain methods of doing

business could be granted patent protection. However, in indicating this they did not

provide a coherent methodology of how to determine this nor did they offer examples to

guide the community. Absent legislation or further guidance from lower courts the

system will muddle on in the penumbra of abstractions so typical of legal rulings.

The US patent system is presently choking with an enormous backlog of cases many of

which are directed to this very same subject matter. When guidance will come from the

legislature or lower courts only Heaven knows.

If you are seeking for law firms with trademark registration, patent registration, company registration, ipr law services, legal outsourcing solutions, export import data bank, business registration, vat registration, copyright registration and commercial law then 365companies is your destination that offers wide variety of corporate services at affordable prices. It consist a large team of attorneys and corporate lawyers that handles complicated business issues at domestic as well as international level. Among all these types of business law services, trademark registration is one of the most common and favored services demanded by most of business houses. Trademark is a type of intellectual property that acts as unique identity to company in respect of its product or services offered to international market.

Trademark may be logo, design, symbol or image that defines company’s product or services in the market. It is very helpful in case of same product or services by the two different manufacturers. It is a type of unique sign or symbol used by an individual, company, organization or other legal entity to differentiate their products or services to consumers. As day by day there is huge competition in order to make more money or profit, therefore it is advisable and recommended to get trademark registration. Every country has its own trademark rule and procedures that one has to follow to get trademark registration. Like trademark registration, there are many law services at corporate level which are very beneficial to accompany with. Like patent registration that includes becoming an owner of own invention in the form of new service or product and to protect other’s from stealing the invention. As with the increase in competition there is always chance of getting one’s product copies, misuse, stolen by an unauthorized person. The patent act, 1970 is a governed body of patent registration system of India. There are many law firms that help you in patent registration process.  

When you start operating your business under any name, it is always advisable or profitable to get its name register under Indian company act. There are different benefits of business registration like when you need to apply for loans, business building activities loan, to open bank accounts on business name for its regular financial transaction and many more advantages can be taken from business registration. 365companies is law firm that comprises a team well qualified attorneys and lawyers that provides complete suggestion and information regarding different types of law services. It is a type of ipr law firm that offers different type of intellectual property services at affordable price, that meets their client’s business law requirements and expectations completely and also helps them in promoting their business successfully.

Laws regulating patents differ from place to place, so it is important for you to hire a reliable patent law firm in your area that can give you legal services that will help you file for your patent and protect your rights. If you live in the U.S., then you should be able to find a paten law firm that can protect you from patent infringement for up to 20 years after your patent was accepted. Not all patent law firms, however, are as successful as others, so it is important for you to do some research that will help you choose one that can give you the best legal services at an affordable price.

Choose a Patent Law Firm with Lots of Experience in Your Field

One of the most important things for you to consider when you talk to patent law firms is the amount of experience that they have in your field. If you talk to large firms that work in patent law, then you will find that many of them have specialists working for them that understand the details of how patent law is applied to industrial techniques, consumer goods, and other inventions. You will want to choose a patent law firm that has someone who is knowledgeable about your industry. If you design toys, then it makes sense for you to choose a lawyer who has represented other toy makers. If you make computer parts, then you should choose someone who understands how patent law applies to computer technology.

Choose a Patent Law Firm with a Successful Track Record

You will also want to ask the patent law firms to give you some statistics that show you they have a successful track record. If the firm rarely wins a case, then you should consider hiring someone else. If the patent law firm has been able to protect the rights of other inventors, though, then you should consider hiring them to perform your legal services.

Choose a Full-Service Patent Law Firm

You can often get the best legal advice and services from full-service patent law firms. Patent law attorneys do not usually spend a lot of time in court. They tend to spend their time helping clients apply for patents and negotiating with other lawyers to reach compromises that will not harm their clients. This does not mean, however, that it is acceptable to hire a patent law firm that does not have much experience in the courtroom.

Even though patent lawyers do not spend a lot of time in front of a judge, you need to know that the firm you hire is prepared to take your case to court if someone has infringed on your patent rights. This could be the only way to make sure that you get full financial compensation for your inventions.

Choose an Affordable Patent Law Firm

The best patent law firm in the world does not do you any good if you cannot afford to hire them. Ask the firms to give you price quotes so you can choose one that fits into your budget without sacrificing the quality legal services that you need to secure your patents.

For more information about patent application and patents search visit Aplegal.com

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If you have a specific design or invention you wish to protected, you must apply for a patent through the United States Patent and Trademark Office. It is important that you do not use terms such as “patented” or “patent pending” prior to applying for or being granted a patent, because doing so is a violation of federal law. Applying for a patent through the United States Patent and Trademark Office can require special legal knowledge. It may be in your best interest to consult with a patent attorney. Here are the basic steps outlining how to obtain a patent.

The first step you will want to take to obtain your patent is to visit a local branch of the United States Patent and Trademark Office. If that isn’t convenient, you can find most of the information and required forms at the U.S. Patent and Trademark Office Web site.

Next, you will need to prepare a full and detailed proposal of your design or invention. The proposal must contain specific descriptions in English and detailed drawings. You will then prepare and execute a brief declaration that the design or invention is an original, and that it does not infringe on any existing patent.

After making the appropriate number of copies and following all instructions, you will submit your proposal and declaration to the director of the U.S. Patent and Trademark Office at your local branch or through the Internet. Upon submission, you will be required to pay filing fees for a search and examination of your proposal.

If the U.S. Patent and Trademark Office presents any objections or requests any modifications, you must address them in a timely fashion.

Obtaining a patent through the U.S. Patent and Trademark Office can be a lengthy process. If everything in your proposal is accurate and there are no objections or requested modifications, the process will be completed in approximately 18 months. If there are objections or requested modifications, the process can take much longer.

Once you obtain a patent, you will be required to pay maintenance fees. Maintenance fees are required at three to four-year intervals following the grant date. You will typically be afforded a six-month grace period to pay your maintenance fees. You must renew your patent prior to the expiration date. Patents typically last for a period of 20 years, although design patents expire after a period of 14 years. Design patents include those that improve upon or act in conjunction with another patent.

Every individual needs to protect their intellectual property by getting its patent. This necessitates the need to file a patent application so that all your business and ownership rights are well protected and no one is able to strip you off your rights. You should not allow anyone to get a patent on your hard work or invention. If you do not prepare any Dallas patent application and submit it to the concerned authorities, you will soon lose your invention and someone will get credit for your own invention. Do not let this happen to all your hard work – the process is simple! You will just need to hire a Dallas patent attorney who shall make an application on your behalf, to get your patent.

It is crucial to get the Dallas patent application in the right format so that the approving authorities approve the application and grant the patent to the applicant as soon as an application is made. This is not always easy as the authorities check many things before approving the patent application. If you are submitting your patent application for the first time you need to know about the different ways of filing your documents and application so that your application gets approved straight away. You might not have the relevant knowledge and experience to file the application without any mistake – in such a case, you can take help of anyone who has specialized knowledge and experience in filling of such application forms.

Any person, who has worked in the patent and trademark office as an examiner for some years, shall be the best person to advice you and guide you with your Dallas patent application. Such people shall help you in every possible way to write your patent application so that you can do your best to protect your patents. There are many patent attorneys who work relentlessly to get patents approved for their clients. Most of such attorneys have years of experience in getting patents done for their clients. You can hire any such person who has experience and expertise in such patent approval tasks. You can get in touch with any such Dallas patent attorney who will be ready to offer you guidance and help to get your patent approved. This is where attorneys find the need of getting their Dallas patent application done in the correct format so that the concerned authorities approve the application as soon as possible.

If you are able to hire the right company or the best Dallas patent attorney, you will be able to develop and implement a great strategy for your patents which shall ensure that all your intellectual properties get all the rights and respect which they actually deserve. Most attorneys offer the initial consultation completely free and for the rest of the guidance and help, you might be charged an amount which is very little when compared to the benefit you receive. You just need to decide whom you wish to hire and when you want to make an application for patent. The rest shall be done by your expert Dallas patent attorney.

Understanding patent infringement also means understanding intellectual property. Obviously, the material inside my head, my thoughts, my feelings, and the brain activity that makes me who I am is mine.

However that is not all considered intellectual property.

Attorneys are constantly setting new precedent when it comes to patent infringement law dealing with intellectual property, as intellectual property is the material which comes from the stuff inside my head. Intellectual property covers everything from the creation of written material to software to recorded media. Lawyers from around the world have yet to come up with exactly what encompasses intellectual property and what doesn’t. No national or international agreement exists as of yet.

Attorneys have been able to agree on a case by case basis when patent infringement of intellectual property has occurred. It is basically the theft or copying of another’s idea, material, compound, or product and claiming it as your own. Marketing of material that is the product of patent infringement is very illegal, and is prosecutable, typically leading to high end awards for claimants. It may very well be a complicated sector of law, but patent infringement attorneys certainly know it when they see it.

There is a difference between copyrighted material and intellectual material, and these law does not necessarily apply the same way as copyrighted law, however they are also very similar. As an attorney explains, copyrighted material can be copyrighted by the author or producer in any stage at any time simply by placing the copyrighted symbol on the page along with the necessary information. It may be cataloged with the copyright office, but it is not required to be.

On the other hand, nobody can be guilty of patent infringement if there is no registered patent. A registered patent is necessary for it to occur. Patent infringement is determined by numerous other factors as well, not solely on whether or not there was a patent.

In the quest for a patent, a company or individual typically retains an attorney to validate that there is not already in existence a pending patent of the same caliber. This is referred to as a clearance search. After the clearance search is complete, the patent infringement lawyer then offers his legal opinion to the status of the invention and then to the likelihood of the product being a threat of patent infringement. After these steps are completed, the inventor then files a patent application. Only after the patent application has been published can there be any threat of it.

Unintentional patent infringement is still prosecutable. However, only if willful patent infringement is determined can the jury then award the claimant up to three times the actual damages plus legal fees. Involuntary patent infringement does not allow for such high damages, however, damages for losses, estimated losses, or potential losses are a possibility along with the right to demand removal of the product from commercial venues.

Because it comes with such heavy consequences, it is typically agreed upon that attorneys are hired by the company at the onset of any new project. Attorneys are able to provide the valuable insight into latent law that can help a company determine whether or not to proceed with a particular project.

It is possible to purchase insurance, which protects the inventor in the event that they accidentally overstep laws. However, patent infringement insurance policies generally demand that the inventor or the inventor’s company confer with a patent infringement attorney prior to purchase of the policy.

In the event that the attorney ill advised the inventor, the insurance then protects the inventor and his company from financial devastation. Although patent infringement attorneys are well versed in law and the practices of avoiding a patent infringement lawsuit, they are still human beings and it is possible for an attorney to make an error.

Being able to invent something new and to improve the world in one form or another is really an amazing gift. Of course, everyone wants their just desserts when they produce something that no one else has thought of. Laws are there to help protect free enterprise and to encourage the continuation of developments and inventions. Intellectual property is one of the highest assets we as human being are blessed with, and it is always positive when it is applied in good turn.

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Chemical, pharmaceutical, and biotechnology companies and inventors spend countless number of hours and a lot of money to come up with a drug for curing killer diseases like cancer or diabetes or a new catalyst to make a wonder plastic. They protect their inventions by securing a patent.

For one reason or another, the patent owner may not be ready to make or sell the patented invention. The patent owner, for example, University or individual inventor, may be thinking of licensing the invention to another who can market the invention, and collect royalty payments rather than undertake efforts to secure financing necessary to bring their works to market themselves. However, much to the patent owner’s surprise and anger, it may notice an infringer illegally making and selling the invention. Can the patent owner go and automatically get an order to halt the infringer’s operations? The answer may be surprising. The courts are not always sympathetic to the patent owner.

In the recently decided fight between internet giant eBay and another company Mercexchange, who owned a patent for doing business on the web, Justice Clarence Thomas, speaking for the United States Supreme Court, ruled that the patent owner, besides showing that the patent has been violated, must prove that a number of things are lining up in its favor before it can stop the infringer. This is a dramatic departure from the earlier lower court ruling that, except in rare situations, a court should automatically issue an order to halt the infringer’s operations.

To succeed in stopping the infringer’s operations, Justice Clarence Thomas, writing for the Supreme Court, said that the patent owner must show that the patent owner has suffered beyond repair by the actions of the infringer; that money cannot compensate for the infringer’s actions; how the patent owner’s hardship outweighs the hardship of the infringer; and that public interest would not be served by stopping the infringer. This is commonly called the “four-factor test”.

In proving that things are lining up in his favor, one question that would come up is how strong the patent is – i.e., can it survive an attack on its validity. A weak or vague patent is of little use. In the words of Justice Anthony Kennedy, “the potential vagueness and suspect validity of … the patents may affect” the outcome.

Securing a strong patent is not trivial. It is important that the patent is filed promptly and accurately. If the patent was filed long after the invention was published in a magazine or displayed as a poster, its validity or vitality comes into question. Or the patent may have been filed promptly but the patent may not cover the invention adequately. In some instances, important information may have been hidden from the Patent Office. To succeed in stopping the infringer, or getting a sizable royalty or settlement, it is critical that the patent is strong and robust.

Supreme Court of India in its civil appellate jurisdiction adjudicated on a Patent dispute titled J. Mitra & Co. Pvt. Ltd. versus Asst. Controller of Patents & Design. & Ors..

The Supreme Court granted the leave and directed the High Court to adjudicate the matter in interest of justice for only two appeals of such kind were pending in the High Courts. The special circumstances arises because of dichotomy introduced for the first time by the Patents (Amendment) Act, 2005, in the Patent Law between “opposition to the pre-grant” and “opposition to the post-grant of patent” and “appeals against order passed by Controller of Patents under pre Grant or post grant opposition”.

It would be wise to state the brief facts of the matter in tabular form for better understating of the matter.

26.03.1999 Section 116 of the Indian Patents Act, 1970 amended by the Patents (Amendment) Act, 1999 w.e.f. March 26, 1999 that provides for appeal to High Court against orders passed by the Controller of Patents. At that time only provision/remedy to oppose the grant of patent was pre grant opposition.

14.6.2000 J.Mitra & Company Pvt. Ltd. the appellant herein filed an application for grant of Patent

25.06.2002 Patents (Amendment) Act, 2002 was promulgated by Legislature and to hear appeals against orders passed by the Controller Appellate Board established under Section 83 of the Trade Marks Act, 1999 was made the Appellate Board for the purposes of Patent Act (under Section 116) and under Section 117A provision was made that appeal against order of Controller under Section 25 (pre Grant Opposition) and other provisions shall lie only in the Appellant Board. But Section 116 and 117A were not notified and brought into force. Still at that time only provision to oppose the grant of patent was pre grant opposition under Section 25 and same brought into force vide Notification dated 20.5.2003.

20.11.2004 The application was notified by the Patent Office after scrutiny

Span Diagnostics Limited opposed the application under the provisions of Section 25 as stood then (Pre Grant Oppositon)

04.04.2005 The Legislature enacted the Patents (Amendment) Act, 2005 w.e.f. 01.101.2005 but not all provisions were simultaneously brought into force. Only certain sections of the Patents (Amendment) Act, 2005 were brought into force. Provisions for Pre Grant as well as Post Grant Opposition were made. But Section 117A was amended and expression Section “25” was replaced with Section 25(4),effectively meaning that appeal shall lie against order passed under Section 25(4) i.e. order passed by Opposition Board in Post Grant Patent. The Legislature allowed appeals only against decision passed by the Controller in a Post Grant Opposition not pre Grant Opposition. Though the provisions of Section 25 were brought into effect, but the provisions of Section 116 and 117A were not brought into effect.

21.03.2005 Pre-grant opposition was filed under Section 25(1) of the Patent Act. It is to be noted that Patent (Amendment) Act, 2005 was enacted only after filing of this opposition on 04.04.2005 but was brought into effect from 01.01.2005. Therefore only provision available for opposition on such date was under the Patent (Amendment) Act, 2002.

23.08.2006 Pre Grant Opposition was rejected by the Controller of Patents. And as the Section 116 and 117A was not enacted on such date only remedy was to file Appeal under the provisions of Section 116 of Patent (Amendment) Act, 2002 that provides for filing the appeal before the High Court.

22.09.2006 The patent was granted. From here contention of Appellant arises, that after grant of Patent

19.10.2006 Appeal filed before the High Court against the order passed by the Controller of Patents in the patent opposition being FAO no. 292/2006 & 293/2006.

02.04.2007 Provisions of Section 116 and 117A, brought into effect by notification by the Legislature

03.04.2007 Provisions of Section 117G, that called for transfer of all pending proceeding against any order or decision of Controller and all cases pertaining to revocation other than on a counter claim in a suit for infringement and rectification of register pending before any High Court to the Appellate Board was brought into effect by notification by the Legislature. The Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.

In words of Hon’ble Supreme Court “This matter is a classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of Patents (Amendment) Act, 2005.”

The enactment of Patents (Amendment) Act, 2005, introduced for the first time a dichotomy in the Patent Law between “opposition to the pre-grant” and “opposition to the post-grant of patent” and also as to “appeal” that may be preferred against any orders that may be passed by the Controller of Patents in opposition proceedings. No doubt, the Amendment Act of 2005 brought major structural change in the Indian Patent Law as per India’s Obligation under WTO/GATT. As per the amendment the appeals against orders passed under the post-grant opposition by the Controller shall lie before the Appellate Board and not to the High Court. But the enabling provision i.e. Section 117A was not brought into force till April 2, 2007. Therefore, appeal if any has to be preferred before the High Court under Section 116 of the Patent (Amendment) Act, 1999.

Though the provisions for an appellate forum to hear appeals against order passed by the Controller of Patents were enacted by legislature in 2002, the Govt was not able to start functioning of the Appellate Tribunal till April 2007 and hence Section 116 and 117A were not brought into force.

The Legislature intended to provide for only one statutory appeal against order passed by the Controller that too in a Post Grant Opposition to the Appellate Board but by not bringing Amending Section 61 into force till April 02, 2007, appeals filed during the interregnum i.e. between 01.01.2005 to 01.04.2007, as in this case, became vulnerable and liable to be dismissed as misconceived as contended by the appellant before Supreme Court.

Supreme Court observed “quite often the commencement of an Act is postponed to some specific future date or to such date as the Appropriate Government may, by notification in the Official Gazette, appoint. At times provision is made for appointment of different dates for coming into force of different parts of the same Act.”

“An Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.”

The Court while applying the above tests to the present case found that for the first time a dichotomy was introduced in the Patent Law by providing vide Section 25(1) for “opposition to pre-grant” and vide Section 25 (2) for “opposition to post-grant” of paten under the Patents (Amendment) Act, 2005. Earlier, there was no “post-grant opposition” and the only provision of challenge was a “pre-grant” challenge under Section 25 (1). By Patents (Amendment) Act, 2005, under Section 25(2) right is granted to an “aggrieved person” to challenge the patent even after its grant and the grounds of challenge are identical to Section 25(1) of the Act. Therefore giving a right after grant but limiting the right to only an “aggrieved person” and fixing the limitation period to one year after grant.

Though the Legislature further intended to limit the right to appeal only to post grant oppositions and obliterate appeal from “pre-grant proceedings” but the Executive did not bring the enacted law (Chapter XIX having provisions for appeals to the appellate board i.e. Section 116 and 117 A to H) into force vide a notification simultaneously along with other provisions of the Act especially Section 25 (1) and (2). As a result the chapter XIX containing amended Sections 116 and 117A(2) were not brought into force only on 2.4.07 (and 117G on 03.04.2007) whereas the concept of “Pre grant” and “Post-grant” oppositions were already brought into force w.e.f.1.1.2005. In words of the Hon’ble Supreme Court:

“This is where the legislative intent got defeated during the interregnum.”

During that period only the Respondent filed appeals against the orders rejecting the Pre Grant Oppositions by Controller of Patents being FAO No. 292/06 and 293/06 before the High Court under Section 116 of the Patents (Amendment) Act, 1999 , as it stood on date of filing of appeal i.e. October 19,2006”. On the date of filing of appeal, the amended Section 117A, suggested by Patents (Amendment) Act, 2005, was not brought into force, therefore, the Patents (Amendment) Act, 1999 prevailed under which an appeal lay before the High Court.

The Supreme Court held “Taking into account the complexities involved in this case, on account of a hiatus created by reason of the law not being brought into force in time, we are of the view that the first appeals, filed by respondent no.3 in the High Court being FAO No.292/06 and FAO No.293/06, would remain in the High Court. The said appeals would be heard and disposed of by the High Court in accordance with law under Section 116 of the said 1970 Act as it stood on 19.10.06. The High Court will hear and decide the validity of the Order passed by the Controller dated 23.8.06 rejecting “pre-grant opposition” filed by respondent no.3. We are informed that there are hardly one or two matters of this nature which are pending.

Therefore, we are of the view that respondent no.3 cannot be let without remedy. In the special circumstances of this case, particularly when after 2.4.07 appeals against orders rejecting “pre-grant opposition” are not maintainable and particularly when FAO No.292/06 and FAO No.293/06 were filed by respondent no.3 prior to 2.4.07 under the old law, we are of the view that these two appeals shall be heard and decided by the High Court in accordance with law. The Appellate Board after 2.4.07 is entitled to hear appeals only arising from orders passed by the Controller under Section 25(4), i.e., in cases of orders passed in “post-grant opposition”. Therefore, there is no point in transferring the pending FAO No.292/06 and FAO No.293/06 to the Appellate Board which has no authority to decide matters concerning “pre-grant opposition”. Moreover, it may be noted that even Section 117G, which refers to transfer of pending proceedings to the Appellate Board, is also brought into force vide Notification dated 3.4.07. Keeping in mind the peculiar nature of the problem in hand, we are of the view that ends of justice would be subserved if the High Court is directed to hear and decide the appeals bearing FAO No.292/06 and FAO No.293/06 in accordance with law as it then stood, i.e., under Section 116 under Patents (Amendment) Act, 1999 against Orders passed by the Controller in “pre-grant opposition” proceedings.

The Section 6 of the General Clauses Act 1897 clarified the position of law and intent:

6. Effect of repeal.- Where this Act , or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

….

c). affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

The provision along with ratio laid down by Hon’ble Supreme Court in GSK case concerning the Exclusive marketing rights (GSK Case) made amply clear that where any enactment is repealed, it shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, unless, a different intention appears.

Applying the same ratio in the present matter, though the rights were accrued to respondent before the provisions of Section 116 as envisaged under Patents (Amendment) Act, 2005 was enacted, but the provisions of Section 117A made very clear that intention of legislature is different i.e. no appeal shall lie against any order passed by Controller of Patents in Pre Grant Oppositions.

The pendency of only very few such appeals against pre grant orders during the interregnum made the Hon’ble Supreme Court to keep the matter with the High Court. Otherwise, the interpretation of “appealable orders” under 117A read with 117G might have settled the position of law as to what about the provisions against which right to appeal is taken away subsequently.

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