48 months time period for filing of RFE of patent application is mandatory: DHC

The Delhi High Court has clarified that the time period of forty-eight months (from the date of priority of the patent application or from the date of filing of the patent application, whichever is earlier,) for the filing of request for examination is mandatory and in case of the applicant missing the stipulated timeline, the patent application shall be treated as withdrawn by the applicant.

“It is evident from a bare reading of the provisions of the statute as well as the rules that the timeline stipulated is mandatory and has to be strictly abided by. It is clarified from the statutory provisions that the applicant or any other interested person must make a request in the prescribed manner for such examination within the prescribed period. It is further clarified that in case the applicant or any other interested person does not make a request for examination of the application for a patent within the period as specified under sub-section (1) or sub-section (3), the application shall be treated as withdrawn by the applicant”, a Division Bench of the Court said.

The Court observed that given the clear mandate of the statutory provisions (Section 11(B) Patents Act, 1970 and Rule 24(B) Patents Rules, 2003), the petitioner cannot be heard to say that the Office of Patent and Designs was additionally required to serve another notice.

The court refused to accept a plea challenging constitutional validity of Sections 11(B) and 117A(1) of the Patents Act, 1970 and Rules 24B and 138 of the Patents Rules.

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