Chapter 17
General Powers of Controller
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Powers of a
Civil Court Subject to any rules made in this behalf, the Controller in any proceedings before him under this Act, have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Act No. 5 of 1908) in respect of the following matters, namely: —
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Awarding Costs
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Review a.
Any
person considering himself aggrieved by any order or decree of the Controller
from which an appeal is allowed but no appeal has been preferred, or from
which no appeal is allowed, and who, from the discovery of new and important
matter or evidence which, after the exercise of due diligence was not within his knowledge or
could not be produced by him at the time when the order or decree was passed or order made, or on account of
some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain
a review of the decree passed or order made against him, may apply for a review of the order or decree
to the Controller. b.
An application to the Controller for the review
of his decision under clause (f) of sub-section (1) of section 77 shall be
made within one month from the date of communication of such decision to the
applicant or within such further period not exceeding one month thereafter as
the Controller may on a request allow. c.
An application for review shall be accompanied by
a statement setting forth the grounds on which the review is sought. d.
Where the decision in question concerns any other
person in addition to the applicant, the Controller shall forthwith transmit
a copy of each of the application and the statement to the other person
concerned. e.
An application to the Controller for setting
aside an order passed by him ex-parte under clause (g) of sub-section (1) of
section 77 shall be made within one month from the date of communication of
such order to the applicant or within such further period not exceeding one
month as the Controller may on a request allow and shall be accompanied by a
statement setting forth the grounds on which the application is based. Where
the order concerns any other person in addition to the applicant, the
Controller shall, forthwith transmit a copy each of the application and the
statement to the other person concerned. |
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Petition for Obviating an Irregularity Any document for the amendment of which no special provision is made in the Act may be amended and any irregularity in procedure, which in the opinion of the Controller may be obviated without detriment to the interests of any person, may be corrected if the Controller thinks fit and upon such terms as he may direct. While considering a petition under Rule 137, only such an irregularity is allowed to be obviated which is without detriment to the interests of any person. Further, only such amendments for which there is no special provision in the Act and which may be made without detriment to the interests of any person are allowable. Generally, a failure to Act within prescribed time shall not be considered as an irregularity which can be obviated under this Rule, as the Patents Act and Rules clearly mentions, wherever extensions are allowed. |
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Mention of Inventor in Patent If the controller is satisfied, upon a request or claim made in accordance with the provisions of this section — i) that the person in respect of or by whom the request or claim is made is the inventor of an invention in respect of which application for a patent has been made, or of a substantial part of that invention; and ii) that the application for the patent is a direct consequence of his being the inventor, the Controller shall, subject to the provisions of this section, cause him to be mentioned as inventor in any patent granted in pursuance of the application in the complete specification and in the register of patents: a. Such a request or claim shall be accompanied by a statement setting out the circumstances under which the claim is made. b. However, the mention of any person as inventor under this section shall not confer or derogate from any rights under the patent. c. A request that any person shall be mentioned as aforesaid may be made in the prescribed manner by the applicant for the patent or (where the person alleged to be the inventor is not the applicant or one of the applicants) by the applicant and that person. d. If any person [other than a person in respect of whom a request in relation to the application in question has been made under sub-section (2)] desires to be mentioned as aforesaid, he may make a claim in the prescribed manner in that behalf. e. A request or claim under the foregoing provisions of this section shall be made before the grant of patent. f. Where such a claim is made, the Controller shall give notice of the claim to every applicant for the patent (not being the claimant) and to any other person whom the Controller may consider to be interested and before deciding upon any such request or claim, the Controller shall, if required, hear the person in respect of or by whom the request or claim is made, and also any person to whom notice of the claim has been given as aforesaid. g. Where any person has been mentioned as inventor in pursuance of such an application, any other person who alleges that he ought not to have been so mentioned may at any time apply to the Controller for a certificate to that effect, and the Controller may, after hearing, if required, any person whom he may consider to be interested, issue such a certificate, and if he does so, he shall rectify the specification and the register accordingly. h. The procedure specified in rules 55A and 57 to 63 relating to the filing of notice of opposition, written statement, reply statement, leaving evidence, hearing and cost shall, so far as may be, apply to the hearing of such a claim or application as they apply to the opposition proceedings subject to the modification that reference to patentee shall be construed as the person making the claim, or an application, as the case may be. i. Any mention of the inventor under sub-section (1) of section 28 shall be made in the relevant documents in the following form namely:- “The inventor of this
invention/substantial part of this invention within the meaning of section 28
of the Patents Act, 1970, is…of…”. |
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Directions
Not Otherwise Prescribed a. Where for the proper
prosecution or completion of any proceedings under the Act or these rules,
the Controller is of the opinion that it is necessary for a party to such
proceedings to perform an Act, file a document or produce evidence, for which
provision has not been made in the Act or these rules, he may, by notice in
writing, require such party to perform the Act, file the document or produce
the evidence specified in such notice. b. Where an applicant or
a party to a proceeding desires to be heard or not heard, the Controller may,
at any time, require him to submit his statement in writing giving such
information as the Controller may deem necessary within the time specified by
him. |
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Exercise of Discretionary Power by the Controller a. Before acting adverse
to any party, the Controller shall give an opportunity of being heard to the
party. The discretionary powers shall be exercised with due care and caution
and not in an arbitrary manner. Such reasons shall be taken judiciously and
the reasons shall be recorded in the file. However, this will not apply to
actions resulting from “deemed” provisions in the Act and Rules. b. A party desiring a
hearing shall make the request for such hearing to the Controller at least
ten days in advance of the expiry of the time-limit specified in respect of
the proceeding. c. Before exercising any
discretionary power under the Act or these rules which is likely to affect an
applicant for a patent or a party to a proceeding adversely, the Controller
shall give such applicant or party, a hearing, after giving him or them, ten
days' notice of such hearing ordinarily. |
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Power of Controller to Correct Clerical Errors, etc. a. Without prejudice to
the provisions contained in sections 57 and 59 as regards amendment of
applications for patents or complete specifications or other documents
relating thereto and subject to the provisions of section 44, the Controller
may, in accordance with the provisions of this section, correct any clerical
error in any patent or in any specification or other document filed in
pursuance of such application or in any application for a patent or any
clerical error in any matter which is entered in the register. b. A correction may be
made in pursuance of this section either upon a request in writing made by
any person interested and accompanied by the prescribed fee, or without such
a request. c. Where the Controller
proposes to make any such correction as aforesaid otherwise than in pursuance
of a request, he shall give notice of the proposal to the patentee or the
applicant for the patent, as the case may be, and to any other person who
appears to him to be concerned, and shall give them an opportunity to be
heard before making the correction. d. Where a request is
made for the correction of any error in a patent or application for a patent
or any document filed in pursuance of such an application, and it appears to
the Controller that the correction would materially alter the meaning or
scope of the document to which the request relates and ought not to be made
without notice to persons affected thereby, he shall require notice of the
nature of the proposed correction to be published in the official journal. e. Such a request for
the correction of a clerical error in any document shall be accompanied by a
copy of the document highlighting the corrections clearly along with the
prescribed fees. f. Within the prescribed
time after any such publication as aforesaid any person interested may give
notice to the Controller of opposition to the request, and, where such notice
of opposition is given, the Controller shall give notice thereof to the
person by whom the request was made, and shall give to him and to the
opponent an opportunity to be heard before he decides the case. g. The procedure
specified in rules 58 to 63 relating to the filing of reply statement, leaving
evidence, hearing and costs shall, so far as may be, will be applicable to
the above proceedings. |
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Ex-parte decision Before proceeding ex-parte against any party, the Controller shall
issue a notice to the concerned party clearly stating therein that if the
party fails to attend the hearing so fixed, he shall be proceeded ex-parte.
Such notice shall be sent by Registered Post with acknowledgment due. |
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