Delhi High Court clarified that the date on which the patent is granted cannot be the date of issuance of certificate but has to be the date on which orders are passed by the Controller.
The Court said “Certificate is in the nature of execution of that order and is proof of fact that the patent has been granted which is the date on which the Controller passed the order. It is the date on which the decision is taken by the Controller on file in respect of a pre-grant opposition (either rejecting or accepting the representation) which is the determining event ascertaining the date of grant of patent. The sealing of patent and entering of the same in the register are ministerial acts which follow the Controller’s act of grant of patent. The onus is on the person instituting the pre-grant opposition to be vigilant about the date of publication of the application under Section 11A of the Act and take appropriate steps for filing the representation.”
Per the amendment in Section 25 of the Patents Act, a pre-grant opposition can be filed anytime before the grant of patent. If the contention of the appellant is accepted, it would lead to misuse of the provisions inasmuch as once the pre-grant opposition of one person is rejected, before a certificate under Section 43 is issued, other person at the behest of the first objector can file the objection and adopting such methodology the proceedings can be delayed endlessly, the Court observed.