Elanco Tiergesundheit Ag vs The Assistant Controller Of Patents And ... on 7 October, 2022

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Delhi High Court - Orders

Elanco Tiergesundheit Ag vs The Assistant Controller Of Patents And ... on 7 October, 2022

Bench: Prathiba M. Singh

                          $~16
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +                    C.A. (COMM.IPD-PAT) 479/2022
                                 ELANCO TIERGESUNDHEIT AG             ..... Appellant
                                              Through: Mr. Sanjeev Kumar Tiwari, Mr.
                                                       Abhishek Jain, Mr. Saksham Garg,
                                                       Mr. Shatadal Ghosh and Mr. Amrish
                                                       Tiwari, Advocates. (M:7042079908)
                                              versus

                                 THE ASSISTANT CONTROLLER OF PATENTS
                                 AND DESIGNS                            ..... Respondent
                                                Through: Ms. Nidhi Raman, Mr. Tarveen Singh
                                                         Nanda, and Mr. Zubin Singh,
                                                         Advocates. (M:9891088658)
                                 CORAM:
                                 JUSTICE PRATHIBA M. SINGH
                                          ORDER

% 07.10.2022

1. This hearing has been done through hybrid mode. I.A. 16281/2022 (for exemptions)

2. This is an application for exempting the Appellant from filing duly executed/affirmed original notarized and apostilled affidavits. Exemption is allowed. Let the original documents be filed within four weeks.

3. I.A.16281/2022 is disposed of.

I.A.16282/2022 (for additional documents)

4. This is an application filed on behalf of the Appellant seeking leave to file additional documents. The said additional documents shall be filed strictly in accordance with the Delhi High Court Intellectual Property Division Rules, 2022 (hereinafter, "IPD Rules, 2022").

5. I.A.16282/2022 is disposed of.

C.A. (COMM.IPD-PAT) 479/2022 Page 1 of 3 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:10.10.2022 17:10:15

I.A.16283/2022 (for delay)

6. This is an application filed on behalf of the Appellant seeking condonation of delay of 98 days in filing the present appeal.

7. Rule 39 of the IPD Rules, 2022 stipulates as under:

"39. Condonation of delay In case of delay in filing of petitions, appeals or any other proceeding beyond the relevant limitation period, if any, the Court shall have the power to condone delay on principles akin to Section 5 of the Limitation Act, 1963 provided that an application demonstrating sufficient cause to explain such delay is filed."

8. A conjoint reading of Rule 39 of the IPD Rules, 2022 and Section 5 of the Limitation Act, 1963 shows that the delay is condonable, provided that sufficient reasons for explaining the same are shown to the Court.

9. As per the present application, the grounds cited for seeking condonation of delay include the spread of COVID-19 in countries like USA, Germany and Switzerland, as also, the change of the international counsel for the Appellant, which made it difficult for the Appellant to seek instructions from the attorneys and technical specialists based out of the said countries. Considering the foregoing averments in the present application, the delay of 98 days in filing the appeal is condoned, subject to the deposit of Rs.25,000/- as costs with the office of the Respondent - CGPDTM.

10. Let the costs be deposited by the Appellant within four weeks.

11. I.A.16283/2022 is disposed of.

C.A.(COMM.IPD-PAT) 479/2022

12. The present appeal has been filed by the Appellant - ELANCO TIERGESUNDHEIT AG challenging the impugned order dated 24th March, C.A. (COMM.IPD-PAT) 479/2022 Page 2 of 3 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:10.10.2022 17:10:15 2022 passed by the Respondent - Assistant Controller of Patents and Designs. By the impugned order, the Appellant's Patent Application bearing No.3679/DELNP/2015 titled 'PREPARATION OF LIVE VACCINES' has been rejected under Sections 2(1)(j) and 2(1)(ja) of the Patents Act, 1970, interalia, on the ground of lack of novelty and inventive step.

13. Mr. Tiwari, ld. Counsel appearing for the Appellant submits that the impugned order dated 24th March, 2022 is nothing but a reproduction of the hearing notice, and none of the submissions made by the Appellant in the reply have been considered. He further submits that the corresponding patents in the USA and EP have also been granted. The relevant documents were placed on record by the Appellant, however, they did not find any consideration in the hearing.

14. Issue notice. Ms. Nidhi Raman, ld. Counsel accepts notice on behalf of the Respondent.

15. If the Respondent wishes to file any affidavit in reply or written submissions along with judgments relied upon, the same shall be filed at least two weeks before the next date. Ld. Counsel for the Appellant may also file written submissions along with judgments, if any, at least two weeks before the next date.

16. List for hearing on 5th January, 2023.

PRATHIBA M. SINGH, J.

OCTOBER 7, 2022/dk/ad C.A. (COMM.IPD-PAT) 479/2022 Page 3 of 3 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:10.10.2022 17:10:15

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Delhi High Court - Orders