Earlier last month I had blogged on the Supreme Court’s decision in the Polydrug case in which Rule 138 of the Patent Rules was in issue. The Supreme Court in that case categorically ruled that the Controller of patents has the power to extend the statutory period by one month under all provisions which have not been expressly excluded from the purview of Rule 138.
Sandeep Kanak Rathod of genericpharmaceuticals blog has been kind enough to share with me another matter relating to Rule 138 which is pending before the Kolkata High Court.
In this case, Hindustan Unilever filed a writ petition before the Kolkata HC challenging the acceptance of counter-statement filed in a post-grant opposition by a patentee beyond the two month period provided under Rule 58.
In this case, Hindustan Unilever filed a writ petition before the Kolkata HC challenging the acceptance of counter-statement filed in a post-grant opposition by a patentee beyond the two month period provided under Rule 58.
According to Hindustan Unilever, which is the post-grant opponent, notice of the opposition was issued to the Patentee by the Controller vide a letter dated June 30, 2008. The patentee filed his counter-statement on September 1, 2008 along with an application for extension of time under Rule 138.
No details of the date of receipt of the notice of opposition are mentioned in the Kolkata HC’s order, but if the notice was received after July 1, 2008, the patentee could be well within his rights to seek extension of time under Rule 138 since the application would be within the prescribed two-month period to file the counter-statement.
The Kolkata HC has issued an interim order holding that acceptance of the counter-statement of the patentee by the Controller was wrong prima facie and has stayed the post-grant proceedings until the disposal of the writ petition.
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