AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
17 paragraphs · 632 wordsS. Usha, J
This instant review petition is filed against the order dated 25/05/2011 passed by this Board dismissing the petition for condonation of delay.
2 . The Review Petitioner submitted that during the hearing, this Hon'ble Board observed that the delay is too short which is reasonable and therefore orally condoned the delay. But on receipt of the order found that the application was surprisingly dismissed.
The respondent had filed their counter affidavit to this Review Petition.
The counsel for the petitioner submitted that the Board had orally observed that the delay is reasonable and therefore the delay was condoned. Thereafter the petitioner had informed his clients about the outcome of the petition by e-mail. Therefore, there is an error in the impugned order which ought to be reviewed.
We also heard the counsel for the respondent.
It is worth to quote the final part of the order dated 25/05/2011.
7 . But the averments in the affidavit in support of the application of Condonation of Delay do not give any reasons for the delay. They are extracted as follows:
) That in view of the fact there is no express provision in the Patents Act, 1970 wherein an appeal may lie before this Hon'ble Board against an order accepting a pre-grant opposition, thereby rejecting the patent application, the Appellant through their attorney attained knowledge of the fact that maintainability of writ petition challenging an order passed by the Patent Office in a pre-grant opposition under Section 25(1) of the Patents Act, 1970 is pending adjudication before Delhi High Court.
) That vide order dated February 8, 2010, Hon'ble Delhi High Court held that an appeal against an order accepting pre-grant opposition thereby rejecting the patent application would lie before this Hon'ble Board.
) That in light of Section 5 of the Limitation Act, 1963, it is submitted that the delay in filing the present appeal before this Hon'ble Board ought to be condoned.
We see that there is no explanation for the delay.
8 . The petitioners before the Delhi High Court in the reported case were aggrieved by an order which they thought was not appealable, and they moved writ petitions. This appellant did not do so. To take advantage of the order, this appeal should have been filed atleast within two weeks from the date of judgment of the Delhi High Court, because they rest their case on that the Delhi High Court judgment is dated 08/02/2010. This appeal is filed on 26/03/2010. We are not satisfied that the appellant has explained the delay in filing the appeal against the order dated 24/07/2009 with the delay of more than four months. It is not really length of the delay which matters, but whether the explanation is satisfactory. There is no explanation in the affidavit filed by the appellant. The petition is dismissed.
On a plain reading of the order, we do not think there is any error to be reviewed.
8 . A review application cannot be allowed to be an "appeal in disguise". The error must be striking on the face of it. In this case in fact the petitioner wants to have the order corrected. We cannot re-hear the matter in the disguise of review.
The petitioner submitted that the explanation for the delay has been clearly stated in the Review Petition which ought to be considered. We do not accept this contention of the petitioner which in our considered view is an after thought to make good the earlier order which is under review.
10 . In view of the above, we do not find any merit in this review petition which deserves to be dismissed. Accordingly the review petition is dismissed with no order as to costs.