IPAB: Rejection of a PCT Application for Delay is a Refusal under Section 15

In an order dated November 2, 2012, the IPAB held that an order of the Controller refusing a National Phase Patent Application for delay in filing beyond the 31 month period, is an order passed under Section 15 of the Patents Act. Consequently, according to the IPAB, an appeal to the IPAB against such an order is maintainable under Section 117A of the Act. This decision was passed in connection with a PCT NP application filed by Durect Corporation, the facts of which I had earlier discussed here.

The IPAB’s decision is clear on the point. One is just surprised that the Patent Office, which is the respondent in the appeal, has resorted to such unfounded grounds of challenge when the law on the scope of Section 15 with respect to rejection of patent applications must be treated as largely well-settled by now.