The Delhi High Court has in a recent order clarified certain aspects of rule 138 of the Patents Rules of India.
In present case, petitioner failed to file request for examination within prescribed time period. Subsequently, citing that Request for Examination could not be filed due to technical reasons, they filed a petition to condone delay under Rule 138 and to request extension of prescribed time for filing of Request for Examination by one month.
The Court observed:
- Upon reading Rule 138, it is apparent that recourse to Rule 138 of the Patent Rules is not available to extend the time period prescribed for requesting examination;
- Moreover, any request under Rule 138 had to be made before the expiry of such time as prescribed in the Rules;
- There is logic to the time limits set out under the Act. The scheme of the Act and the Rules require time-bound steps to be taken by applicants for grant of patent at various stages;
- Finally, the provisions of the Act and the Rules have to expressly reflect the legislative intent to permit relaxation of time limits, absent which such relaxation cannot be read into the provisions by a High Court exercising powers under Article 226 of the Constitution
Considering above, the High Court dismissed the petition to extend deadline to file Request for Examination under Rule 138.
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