What is the consequence if the First Examination Report does not contain the essentials as necessitated in the specified time? Whether the applicant will get the opportunity of hearing and right to appeal?
Under Section 12 of the Patent Act, 1970 when a request for examination has been made with regard to the application for grant of patent under Section 11 B, such application along with specification and supported documents will be referred to the examiner by the Controller for making a report on the following aspects such as filing of application followed the compliance stated in Act and rules, any lawful of objection to the grant of the patent as claimed in application, result of investigations made under section 13; and any other matter. The examiner then makes the report to the Controller within the stipulated period.
Under Section 14, it is clearly stated if the report of the examiner submitted to the controller is adverse to the applicant or requires any amendment of the application, the specification or other documents to ensure compliance with the provisions of this Act or rules made thereunder, the Controller shall communicate the gist of the objections to the applicant expeditiously within the prescribed time and the applicant is given an opportunity of being heard before the application is disposed. With regard to compliance, Section 15 states that if the Controller is satisfied that the application or any specification or any other document does not comply with the requirements of this Act or of any rules, the Controller may refuse the application or may require the application, specification or the other documents, to be amended to his satisfaction before he proceeds with the application and refuse the application if the applicant failed to do so.
Section 117A (2) states that if the applicant is aggrieved by any decision, order or direction of the Controller or Central Government under section 15, an appeal can be filed to the Appellate Board. Also Section 117 A (4) states that appeal to be made within three months from the date of the decision, order or direction, as the case may be, of the Controller or the Central Government. However, it is stated under 117C that no court or other authority is entitled to, exercise any jurisdiction, powers or authority related to matters referred in section 117A (2) or section 117D (rectification of application before Appellate Board)
Adv. Anitha Gutti