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of <h1>Division Bench overturns EMR refusal under Patents Act, preserves rights during Chapter IV-A repeal.</h1> <h3>Glaxo Smith Kline PLC and Ors. Versus Controller of Patents and Designs and Ors.</h3> The Division Bench set aside the order refusing exclusive marketing right (EMR) to the writ petitioners under the Patents Act, 1970. It directed a fresh ... - Issues involved: The issues involved in the judgment are the correctness of the order passed by a learned Single Judge of Calcutta High Court, the refusal of exclusive marketing right (EMR) to the writ petitioners, the effect of the Patent (Amendment Act), 2005 on pending EMR applications, and the maintainability of the writ petition after the amendment.Judgment Summary:Issue 1: Correctness of the OrderThe writ petitioners filed for a patent and EMR under the Patents Act, 1970. The Controller of Patents refused the EMR application, leading to writ petitions. The High Court set aside the Controller's order and directed a fresh decision. The Controller again rejected the EMR application. The appellants argued for the right to challenge the orders under Section 24A and 24B, while the respondents cited the transitional provision of the Patent (Amendment) Act, 2005.Issue 2: Effect of Repeal on Pending ApplicationsThe appellants contended that the repeal of Chapter IV-A did not affect pending EMR applications, as vested rights existed before the amendment. The respondents argued that the transitional provision applied, even to pending applications under Section 11B(3) of the Act.Issue 3: Application of General Clauses ActThe General Clauses Act, 1897 was invoked to determine the effect of repeal on existing rights, privileges, and liabilities. The judgment referred to previous cases to establish that inchoate rights and obligations are covered under the Act, supporting the view that rights under the old statute are not destroyed by repeal.Conclusion:The Court held that the provisions of Section 78 of the Amendment Act did not apply to concluded proceedings before the appointed day. Since Chapter IV-A was repealed, the situation was to be handled under Section 6 of the General Clauses Act. The order of the Division Bench was set aside, and that of the learned Single Judge was upheld. The appeal was allowed without costs.This judgment clarifies the impact of legislative amendments on pending applications and emphasizes the preservation of existing rights under the law.
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