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Report No. 167

2.3. Recommendation No. III: Deletion of section 39 and reference to it in other sections of the Principal Act.-

There appears to be no good reason for deleting section 39 of the Act altogether and the consequent reference to its requirement in sections 40, 64 and 118 as proposed sections 4, 5, 6 and 7 of the Amendment Bill. Firstly, Articles 70.8 and 70.9 of the TRIPS Agreement do not require our country to do so. The said provision does not also stand in the way of effecting compliance with the transitional arrangements provided by the said Articles. Secondly, it cannot also be said that the purpose for which section 39 was introduced in the Act has ceased to be wholly irrelevant.

Section 39 provides that an Indian resident shall not make or cause to be made any application outside India for the grant of a patent for an invention except under the authority of a written permit granted by or on behalf of the Controller (such written permission can be granted by the Controller only with the prior consent of the Central Government) unless (1) an application for a patent for the same invention has been made in India not less than 6 weeks before the application outside India and either no directions have been given under section 35(1) in relation to the application in India or all such directions have been revoked.

Section 35(1) provides that where in respect of an application made before or after the commencement of this Act for a patent, it appears to the Controller that the invention is one of a class notified to him by the Central Government as relevant for defence purposes, or, where otherwise the invention appears to him to be so relevant, he may give directions for prohibiting or restricting the publication of information with respect to the invention or the communication of such information to any person or class of persons specified in the direction; or (2) where an application for protection in relation to such invention has first been filed in a country outside India by a person resident outside India.

2.3.1. It would thus appear that while section 39 is designed to protect and promote the national interest of our country, it is couched in unnecessarily harsh terms. It would be most appropriate and just to provide that if within six weeks, the controller does not intimate in writing that he has issued directions under section 35(1) on his application for patent, the applicant shall be free to apply for patent anywhere outside India.

Accordingly, it is recommended that section 39 be amended omitting the words "except under the authority of a written permit granted by or on behalf of the controller" in sub-section (1). Further at the end of clause (b) in sub-section (1), for the words "or all such directions have been revoked", the words "within the said period of six weeks" be substituted. Sub-section (2) of section 39 has necessarily to be omitted in view of the omission of the aforesaid words in the main limb of sub-section (1).



The Patents (Amendment) Bill, 1998 Back




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