Can the Controller of Patents Review a Patent Grant Under Section 77?

Section 77 of the Patents Act, 1970 lists the powers of a civil court that are vested in the Controller of patents, whose exercise is subject to the Patents Rules, 2003. These powers may be exercised in “any proceedings” before the Controller.

Although what constitutes a “proceeding” is not defined, the use of “any” indicates the broad scope of the provision. In other words, the exercise of these powers is not limited to pre and post-grant oppositions. Therefore, it could be said that these powers are available even in the examination and grant of a patent.

Under Section 77(1)(f), is it possible for the Controller to review a typical patent grant? There is no limitation in the wording of the provision which precludes the exercise of power of review in relation to an order of patent grant. After all, the grant of a patent is a decision passed under Section 43 of the Act, and Section 77(1)(f) deals with review of the Controller’s “decision”, which includes the decision to grant a patent.

That said, the power cannot be exercised suo motu since the provision expressly calls for an application to be made in the prescribed format within the prescribed time, both of which are provided for in Rule 130 (Form 24).