Delhi High Court has set aside the deemed to 'be withdrawn' status of a patent application and restored the Indian National Phase application.
The issue involved incorrect mention of the number of the patent application in Form 18 as well as in its covering letter, and absence of communication from the department seeking correction under Section 78 of the Patents Act. Rejecting the contention of the Patent Office that the power of the Controller to correct clerical errors can only be exercised when patent application is in examination procedure, and hence no office action was possible in present case, the Court observed that if the examiner had examined the application under 11B, in time and submitted his report, it would have been brought to the notice of the Petitioner well before the expiry of 48 months prescribed period and the petitioner could have taken steps to remedy the error. It was held that if the Patent Office had struck to the timelines for examination, the patent application would have been in the examination procedure.
Further the court also noted that since there is no form prescribed by the Act or the Rules for seeking correction under Section 78, even a letter would be sufficient, and that a request under Section 78 is not dependent on the examination procedure or any office action on the patent application. [Iritech Inc. v. Controller of Patents- Judgement dated 20-4-2017 in W.P. (C) 7850/2014, Delhi High Court]