In Bry-Air (Asia) Pvt. Ltd. v. Union of India, the Delhi High Court addressed whether the petitioner, Bry-Air (Asia) Pvt. Ltd., should suffer the consequences of its patent application being deemed withdrawn due to the negligence of its former patent agent.
Bry-Air (Asia) Pvt. Ltd., (hereinafter referred to as ‘Petitioner’) filed a patent application 4154/DEL/2015 titled ‘Devices with hybrid vapour compression-adsorption cycle and method for implementation thereof’. A formal request for examination (Form 18) was required to be filed before the deadline of 18th December 2019. However, due to the negligence of its former Patent Agent, the required form 18 was not filed within the due date and the application was deemed to be withdrawn. Aggrieved, the Petitioner filed a writ petition seeking restoration of its patent application. The Petitioner asserted that they had no fault in the matter and had diligently followed up with its Patent Agent, who assured them that all necessary steps had been taken. The petitioner cited a pattern of negligence by the former agent, which had caused similar abandonment issues with other patent applications, some of which were later reinstated by courts and patent offices worldwide.
The Court, while placing reliance on Bry-Air Prokon SAGL & Ors v. Union of India (WP (C)-IPD No.25/2022, decided on 17.10.2022) and European Union Represented by The European Commission v. Union of India (W.P.(C)-IPD 5/2022 & 6/2022, decided on 09.06.2022), noted that the Petitioner was not at fault and that the fault lay squarely with the Patent Agent. It further observed that the Petitioner had a clear intention to prosecute the application and there was no contributory negligence by the Petitioner. The Court reiterated that abandonment requires a conscious intent, which was absent in this case, as Bry-Air had actively monitored its application’s status. The Court further emphasized that the patent applicants should not be penalized for their agent’s faults, especially where valuable rights are at stake.
The writ was accordingly decided in favor of the Petitioner and the Court directed the Petitioner to file Form 18 (Request for Examination), so that the Indian Patent Office can proceed with the examination of the patent application.
Citation: Bry-Air (Asia) Pvt. Ltd. v. Union of India & Anr., W.P.(C)-IPD 17/2024 (H.C. Delhi Sept. 26, 2024). Available on https://indiankanoon.org/doc/108813329/.
Authored by Anjali S, Patents Team, BananaIP Counsels
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