Patents Rules, 2003
28. Procedure in case of anticipation by prior publication. —
1. If the
Controller is satisfied after investigation under section 13 that the invention
so far as claimed in any claim of the complete specification has been published
in any specification or other document referred to in clause (a) of sub-section
(1) or subsection (2) of the said section, the Controller shall communicate the
gist of specific objections and the basis thereof to the applicant and the
applicant shall be afforded an opportunity to amend his specification.
2.
If
the applicant contests any of the objections communicated to him by the
Controller under sub-rule (1), or if he refiles his specification along with
his observations as to whether or not the specification is to be amended, he
shall be given an opportunity to be heard in the matter if he so requests:
Provided that such request shall be made on a date earlier than
ten days of the final date of the period preferred to under sub-section (1) of
section 21:
Provided further that a request for hearing may be allowed to be
filed within such shorter period as the Controller may deem fit in the
circumstances of the case.
1.
2.
3. If the
applicant requests for a hearing under sub-rule (2) within a period of one
month from the date of communication of the gist of objections, or, the
Controller, considers it desirable to do so, whether or not the applicant has
refiled his application, he shall forthwith fix a date and time for hearing
having regard to the period remaining for putting the application in order or
to the other circumstances of the case.
4. The applicant
shall be given ten days' notice of any such hearing or such shorter notice as
appears to the Controller to be reasonable in the circumstances of the case and
the applicant shall, as soon as possible, notify the Controller whether he will
attend the hearing.
5. After
hearing the applicant, or without a hearing if the applicant has not attended
or has notified that he does not desire to be heard, the Controller may specify
or permit such amendment of the specification as he thinks fit to be made and
may refuse to grant the patent unless the amendment so specified or permitted
is made within such period as may be fixed.
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