Calcutta High Court dismisses plea challenging constitutional validity of amendments to Patents Act

The Calcutta High Court recently dismissed a petition challenging the constitutional validity of an amendment to Section 53 of the Patents Act which sets the term of a patent for 20 years from the date of filing an application [Gunjan Sinha @ Kanishk Sinha v. Union of India]..Justice Sabyasachi Bhattacharyya noted that Section 53 was amended in 2002, whereas prior to this amendment, patents had a term of 5 years, 7 years and 14 years through various amendments."Thus, from the perspective of the patentee, the amended Section 53 is an improvement inasmuch as the term of patent has been increased substantially in line with the Trade-Related Aspects of Intellectual Property Right (TRIPS) Agreement. Hence, there cannot be found any irrationality in the Legislature, in its discretion, having extended the term of patent uniformly for all types of patents to twenty years from the date of the application," the Court held.The single-judge observed that a patent is not a fundamental right guaranteed by the Constitution of India, but one conferred by the statute. Hence, the legislature can selectively confer certain rights from different points of time at different stages of the process of grant of patent. "The gradation of the stages (of applying and receiving patents) and the associated rights for each stage is not unreasonably discriminatory, thus fulfilling the test of Article 14 and Constitutional viability in general. Over and above, the amended provisions of Section 53 are not entirely unreasonable as the right of an applicant freezes from the date of the application and he gets priority of consideration over subsequent applicants even before the patent is published or granted," the Court opined..The primary ground of challenge was that as per Section 53(1), the term of every patent granted after the commencement of the Patents (Amendment) Act, 2002 shall be 20 years from the date filing of the application for the patent. The petitioner submitted that as the full rights conferred by a patent commence only from the grant of the same and certain limited rights are conferred on the date of publication, the stipulation in Section 53 that the term of the patent commences from the date of application of the patent was inherently contradictory to the rest of the statute.The Court noted that India had entered into the TRIPS Agreement on April 15, 1994 and thus, the said agreement is binding on India. Article 33 of the TRIPS Agreement provides that the term of protection available shall not end before the expiration of 20 years counted from the filing date, the Court said."It is to be noted that although Article 33 used the expression 'shall not end before' leaving it open for the tenure to be 20 years or more, the Indian Parliament, in its wisdom, has chosen to strictly apply the said Article by fixing the term of patent to a period of 20 years from filing. Such implementation is perfectly within the legislative competence of the Parliament and in consonance with the TRIPS Agreement as well. Thus, there is no scope of interference by the Courts on such count," the Court opined..As per the petition, Section 11-A(7), which confers certain additional privileges on an applicant for a patent in the period between the filing of the application and publication was contrary to the provisions of amended Section 53.The only rider in Section 11, the Court noted, is that the applicant shall not be entitled to introduce any proceeding for infringement until the patent has been granted. "The statute as it originally stood conferred no additional right on an applicant for the period from the date of publication till grant of patent but equated the periods between date of application and publication on the one hand and date of publication and grant on the other. Such conferment of additional rights on publication, which are limited in nature in as much as no litigation for infringement can be instituted, is entirely within the domain of legislative discretion," the judge held.A careful perusal of the scheme under the Patents Act, as reflected in Sections 45 and 53, shows that the date of patent in sub-section (1) of Section 45, akin to Section 53(1), is the date on which the application for patent was filed, the Bench noted."There is no contradiction between Sections 45 and 53 as both contemplate, in consonance with each other, that the date of commencement of a patent shall be the date of the application and the term of the patent is 20 years from the date of such filing of the application. Since the TRIPS Agreement binds our country as a signatory thereto, the introduction of 20 years’ term was in tune with the same."With these observations, the Bench dismissed the petition..Advocates Kanishk Sinha appeared as party-in-person. Advocate Lipika Das Sinha appeared as intervenor-in-person.Advocates Sukumar Bhattacharyya and Avinash Kankani represented the respondents..[Read Judgment]