Patents Act, 1970 Section 25

Opposition at a pre-grant stage to the Patent Application

Expression 'may' give the opponent an opportunity to be heard has been replaced by the word 'shall hear'
HELD Denial of personal hearing to the petitioner before deciding the petitioner's objection, is without jurisdiction — Grant of patent is non est in law.
Therefore, advisedly right to object at a pre-grant stage has been given to 'any person' by the said amendment. This is an illustration of statutorily broadening the concept of locus standi and widening the scope of objection procedure by giving access to 'any person', who has a concern for public interest in the area of public health and nutrition, to raise an objection. The grant of patent is virtually a grant of monopoly right against the whole world and that is why such wide ranging right of objection has been designedly given at a pre-grant stage. [Para 32]
The petitioners in this writ petition are asserting their rights and voicing their concern on a broad public interest angle. So, it cannot be said if their right is denied they will not suffer any prejudice by denial of an opportunity of hearing to them to establish their rights. A right is a legally protected interest. Therefore when law consciously confers right on a person to object at a pre-grant stage that right must be protected in the way it has been granted, namely the right to object with a right of hearing. For a Court to dilute the said right on the basis of an interpretative process and by looking at it from a rather narrow angle, would, in our judgment, be a travesty of justice. [Para 33]
The argument advanced on behalf of the fourth respondent that the expression 'the Collector shall hear' in Section25(l)(k) of the said Act should mean 'the Collector may hear' is not sound in law. Here we may refer to the provision for hearing which existed prior to the said amendment. Under the pre-amended Section 25(2) the provision relating to hearing is couched in the following words:

"25(2) Where any such notice of opposition is duly given, the Controller shall notify the applicant and may, if so desired, give to the applicant and the opponent an opportunity to be heard before deciding the case."

Therefore, it is clear that the expression 'may' give the opponent an opportunity to be heard has been replaced by the word 'shall hear'. Where legislature itself makes such alteration, making its intention clear in specific term, no option is left except to follow the strict letter of law. [Para 35]
As explained above, the concept of prejudice in a disciplinary enquiry is different from the concept of prejudice in the present case. Grant of patent virtually confers the right of monopoly, which is a right in rem granted in favour of the fourth respondent. Before such a right is granted, law has provided that right of objection to any person. As the patent right is a right in rem, law by the 2005 Amendment confers right of objection also on very wide terms on any person. Law futher mandates when objection is raised, the objector must be allowed to place his objection in a proceeding in which he should be personally heard. That is the language of Rule 55(5) and 55(6) of the Rules, which are quoted herein before. [Para 49]
There is another age old principle which enjoins when statutes provides for doing something in a certain manner, it has to be done in that manner alone, all other modes of performance are necessarily forbidden. Following the said principle in the instant case it is clear that the grant of patent to the fourth respondent has been made in blatant violation of statutory procedure by the statutory authority, which is acting in a quasi-judicial capacity. Such a grant is not legally sustainable. [Para 51]
The remedy at the post-grant stage cannot be equated with the remedy at the pre-grant stage. The insufficiency of the opportunity of hearing at the pre-grant stage cannot be made good by grant of opportunity at the post-grant stage. Since, statute has given remedy at both the stages, it must be made available at both the stages. One cannot be a substitute for the other. An unfair trial cannot be cured by a fair appeal. See Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71. [Para 55]
In view of those principles the third respondent is required to act with a greater application in view of the specific stipulations for consideration contained in Rule 55(6), read along with Section 25(l)(k) of the Act. So by denying a personal hearing to the petitioner before deciding the petitioner's objection, the third respondent acted wholly without jurisdiction in its order of grant of patent in favour of the fourth respondent. The grant of patent is thus as non est in law and consequently is liable to be set aside. [Para 60]