November 29 2010
On August 18 2010 the Ministry of Commerce and Industry published draft rules regarding appeals and applications to the Intellectual Property Appellate Board(1), as required by Section 159(3) of the Patents Act 1970. The draft rules will be considered for 45 days following the release of a notification from the Department of Industrial Policy and Promotion. Within this timeframe, suggestions and objections are invited from all persons that have a direct or indirect interest, as well as from the general public.
The draft rules address procedural aspects regarding the filing of appeals to the board, as prescribed under Section 117A of the act. The draft rules prescribe a uniform format for applicants when filing appeals and specific applications, and indicate that a fee should accompany any such appeal or application.
An appeal to the board under Section 117A of the act, resulting from any decision, order or direction of the controller or the central government, should be filed using Form 1, as provided in the first schedule of the draft rules. Applications such as those for revocation or rectification of patents should be made on Form 2, as prescribed in the first schedule.
Rule 3 of the draft rules provides that the interested party can file for an extension in filing the appeal against a decision of the controller. The request for an extension should be made on Form 3 of the first schedule, mentioning sufficient cause for the delay, within the prescribed time.
Rule 4 of the draft rules details the fee that is payable with each of the respective forms:
The draft rules will come into force upon publication in the Official Gazette. This long-awaited and welcome approach towards the functioning of the IP Appellate Board will bring uniformity and clarity to procedures.
"Rule 1: (1) Short Title and commencement - these rules may be called the Patents (Appeals and applications to Intellectual Property Appellate Board) Rules, 2010; (2) They shall come into force on the date of their final publication in the Official Gazette.
Rule 2: Appeals and Applications - the manner of making appeals and applications and the forms of appeal and application to the Appellate Board and the manner of verification thereof shall be as provided in the First Schedule.
Rule 3: Condonation of delay in filing appeal - Subject to the rules, if any, made by the Appellate Board, any appeal under Section 117A of the Patents Act, 1970 may be admitted after the prescribed period, on a petition made to it in Form 3, that there is sufficient cause for not preferring the appeal within the prescribed time.
Rule 4: Fee - The fee for filing appeal, application or petition for condonation of delay before the Appellate Board shall be as provided in the second schedule, which shall be paid by way of bank draft drawn in favour of the Deputy Registrar, Intellectual Property Appellate Board, payable at Chennai."
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Manoj Kumar Singh