GLAXO SMITH KLINE PLC AND ORS. versus CONTROLLER OF PATENTS & DESIGNS AND ORS.

Citation: [2008] 13 S.C.R. 312 · Decided: 10-09-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2008] 13 S.C.R. 312 
··+-.p 
A 
GLAXO SMITH KLINE PLC AND ORS. 
v. 
CONTROLLER OF PATENTS & DESIGNS AND ORS. 
(Civil Appeal No. 5588 of 2008) 
B 
SEPTEMBER 10, 2008 
[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH 
PANTA, JJ.) 
Patents Act, !970 with Patent (Amendment) Act, 2005; 
c Ss. 21 and 781 General Clauses Act, 1897; Ss. 6 & 24(8): 
Patent - Exclusive Marketing Rights - Grant of, after 
fepeal of relevant provisions thereof - Held: Effect of repeal 
of Chapter IV-A of 1970 Act has to be ascertained in the 
background of s.6of1897 Act- Single Judge of High Court 
D rightly held that provisions under s. 78 of Amended Act have 
no application to the proceeding concluded before the 
appointed day- Under the circumstances, order of the Division 
Bench of the High Gour! cannot be sustained and that of the 
Single Judge has to operate. 
E 
Appellant filed applications for grant of patent and 
Exclusive Marketing Right in the year 2000. The Controller 
of Patent refused the prayer for grant of EMR. Aggrieved 
by the order, appellants filed writ petitions. Single Judge 
of the High Court remitted the matter to the Controller for -
F decision afresh. However, the Controller rejected the 
application. In the meantime, the Patent (Amendment) Act, 
2005 came into force whereby Chapter IV, which contains 
the provision relating to adjudication of tile claim of EMR, 
was deleted. Appellants filed the writ petition, which was 
G allowed by the Single Judge of the High Court remanding 
the matter to the Controller for decision afresh. Appeal 
filed thereagainst by respondents raising preliminary 
~ 
objections as regards maintainability of the writ petition 
in view of the amendments made in the 1897 Act, was 
H 
312 
, 
~ ~. 
GLAXO SMITH KLINE PLC & ORS. v. CONTROLLER 313 
OF PATENTS & DESIGNS & ORS. 
allowed by the Division Bench of the High Court. Hence A 
the present appeal. 
Allowing the appeal, the Court 
HELD: The view of the Single Judge of the High 
Court that the provisions of Section 78 of the Amendment B 
Act have no application to the proceedings which stood 
concluded before the appointed day appears to be the 
correct view governing the issue. Since the Chapter IV-A 
in question was merely repealed, the situation has to be 
dealt with in line with Section 6 of the General Clauses c 
Act. The provisions of Section 78 of the Act are conditional 
provisions and are not intended to cover cases where 
the application for Exclusive Marketing Rights had been 
rejected with reference to Section 21 of the Amended Act 
~. 
The effect of the repeal has to be ascertained in . the 
background of Section 6 of the General Clauses Act. That D 
• 
being so, the order of the Division Bench of the High 
I 
Court cannot_ be sustained and that of the Single Judge 
~ .. 
of ttie High Court has to operate. (Para - 9) [319-C-E] 
f t 
Mis. Hoosain Kasam Dada (India) Ltd. v. The State of E 
Madhya Pradesh and Ors. AIR (1953) SC 221 and Mis 
Gurcharan Singh Baldev Singh v. Yashwant Singh and Ors. 
(1992) 1 sec 428 - referred to. 
~ 
·Chief Adjudication Officer v. Maguire (Simon Brown 
....._ 
F 
LJ) (1999 (2) All ER 859) - referred to. 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5588 
. .of 2008 
From the final Judgment and Order dated 2.8.2006 of the 
High Court of Calcutta in MAT No. 1002 & 1003 of 2006 
G 
.,. 
R.F. Nariman, Hari Shankar K, Sweta Shree Majumdar 
and Vikas Singh Jangra for the Appellants. 
T.S. Doadia, Alka Sharma, V.K. Verma and Manpreet 
Singh Doadia for the Respondents. 
H 
314 
SUPREME COURT REPORTS 
[2008] 13 S.C.R. 
.,._ 1 . 
A 
The Judgment of the Court was delivered by 
Dr. ARIJIT PASAYAT, J. 1. Leave granted. 
2. Order passed in four appeals filed by the respondents 
questioning correctness of order dated 1 oth February, 2006 
B passed by a learned Single Judge of. Calcutta High Court form 
the subject matter of challenge in this appeal. A learned Single 
Judge had set aside the order dated 28.12.2004 passed by 
the Controller of Patents and Designs (in short the 'Controller') 
and remanded the matter to him for arriving at a fresh decision 
c on the application of the writ petitioners for exclusive marketing 
right according to law that existed on 3rd May, 2002. The 
Controller was also asked to consider the report of the examiner 
dated 28.7.2000. 
3. Background facts giving rise to the filing of the writ 
D petition were as follows: 
The writ petitioners filed an application for grant of patent 
under Section 5(
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