OIPD-6 ORDER SHEET IN THE HIGH COURT AT CALCUTTA INTELLECTUAL PROPERTY RIGHTS DIVISION IPDPTA/9/2026 M/S. GREEN ENERGY RESOURCES VS JOINT CONTROLLER OF PATENTS AND DESIGNS PATENT OFFICE KOLKATA AND OTHERS BEFORE: The Hon’ble JUSTICE ARINDAM MUKHERJEE Date: 27th August, 2026. APPEARANCE: Mr. Ranjan Bachawat, Sr. Adv., Mr. Soumya Ray Chowdhury, Adv., Mr. Debanjan Mandal, Adv. Mr. Sanjiv Kr. Trivedi, Adv., Mr. Hemant Thadani, Adv.,Mr. Sanket Sarawgi, Adv., Mr. Satyaki Mukherjee, Adv., Mr.Bhavesh Garodia, Adv., Ms. Samina Khanum, Adv. Mr.Niket Ojha, Adv. Mr. Rooppreet Dhanija, Adv., Ms. Nidhi Mishra, Adv. For the Appellant Mr. Kapil Wadhwa, Adv. (VC) For the respondent no.4 Mr. Indrajeet Dasgupta, Adv., Ms. Priti Jain, Adv. For Controller THE COURT: Although, the respondent no.4 is represented on virtual mode by Mr. Kapil Wadhwa, learned advocate but no one has filed vakalatnama on behalf of the said respondent no.4. The respondent nos.1, 2 and 3 are represented. The appellant, however, opposes any further adjournment since the order revoking the patent which was granted to the appellant during the pendency of the appellant’s restoration application has created serious prejudice to the appellant in carrying on its business particularly where the certificate of registration of the Patent is either statutorily or under the contractual provisions require the same to be filed. 2 This in effect will cause further prejudice to the appellant if the matter is once again adjourned to enable the respondent no.4 to file its vakalatnama. On behalf of the respondent no.4, Mr. Kapil Wadhwa gives an undertaking to file the vakalatnama within 2nd September, 2026. Subject to such undertaking the learned advocate is given the right of audience to represent the respondent no.4 in the matter. It is also the case of the appellant that the patent granted to the appellant due to default in depositing the licence fee within the time it fell due was initially ceased under the provisions of the Patent Act, 1970 (hereinafter referred to as the said Act) and the rules framed thereunder. The appellant has made an application for restoration to permit it to pay the renewal fees so that the registration is revived. The restoration application was filed on 24.02.2026 after obtaining permission from the High Court at Orissa vide order dated 12.02.2026. The restoration application was at the final stage of being considered after the respondent no. 4 had filed its objection when without disposing of the same the patent was revoked despite there being a prayer for adjournment of the hearing of the revocation application made by the appellant and to which the respondent no.4 had consented before the Controller concerned. The appellant says that the revocation, therefore, could not have been done when the restoration application was pending without first disposing of the restoration application particularly when the Orissa High Court in its order dated 12.02.2026 had directed the restoration application of the appellant to be considered within 2 months on the same being filed. Furthermore, the 3 patent could not have been revoked on merits when the default was only in depositing the licence fee within the time frame. Moreover, it is also the case of the appellant that the authority is rather empowered under the statute and not specifically prevented under any provision from not extending the time to deposit the licence fee. Extension of time can be granted even more than once. The revocation, of the appellant’s patent, therefore, is per se without jurisdiction, against the settled principles of law and in violation of the principles of natural justice. However, with the revocation the patent of which the appellant had the registration will be construed to have come into the public domain and parties at large will be entitled to adopt the same without any restriction which is going to further prejudice the interest of the appellant. The order impugned, according to the appellant, has been also passed in violation of principles of natural justice as the appellant was not granted any opportunity to represent itself. No notice of hearing or link was also provided to the appellant to represent at the time when the revocation application was taken up for consideration. It is the case of respondent no.4 that under Section 53(2) and 53(4) of the said Act, there is a procedure laid down to deal with the ceased patents due to expiration of the period prescribed for payment of any renewal fee if that fee is not paid within the prescribed period or within the extended period as permitted. In the instant case the renewal fee was required to be paid by September, 2021, but the appellant failed to do so. Prior to the expiration of the time period for paying the renewal fees, the respondent No.4 had made a post-grant 4 application for rejection of patent granted to the appellant. The restoration application by the appellant has been made much beyond 18 months period as provided under the provisions of Section 60(1) of the said Act. It is, however, correct that the restoration application in the instant case has been made by the appellant on 24th February, 2026 pursuant to the order dated 12th February, 2026 passed by the High Court at Orissa permitting the appellant to make a restoration application within thirty days of the said order and such restoration application on having been made was to be considered within a period of two months from the date of the application. It is also the case of the respondent No.4 that the revocation was justified in the facts of the instant case as the appellant did not follow the procedure laid down under the said Act or the rules framed thereunder. Furthermore, the respondent No.4 says that the application for revocation of grant was already on record much prior to the restoration application being made. A revocation application is maintainable on the ground of failure to pay the renewal fees as also on merits and as such there was no embargo on the part of the Controller to take up the application for revocation made by the respondent No.4 and revoke the appellant’s patent. There is, as such, no procedural lapse for which the order impugned can be contended to be one without jurisdiction or perverse or in violation of principles of natural justice. The respondent no. 4 also submits that there is no scope of passing of an interim order as the appellant will not be prejudiced as the statute provides a clear mechanism as to revival of a lapsed patent. 5 The respondent Nos. 1, 2 and 3 have supported the contention of the respondent No.4 and submits that there is no embargo under the statute which prevents the Controller from taking up the revocation application during the pendency of the restoration application or even in a situation when the matter is remanded back. It is also submitted that the order dated 12th February, 2026 passed by the Orissa High Court also did not direct the restoration application to be heard before the revocation application. In any event the two applications were pending before two different authorities. After hearing the parties and considering the materials on record, the admitted fact is that the respondent No.4 on the application of the appellant for grant of patent having been published did not raise any objection to such application. The objection which the respondent No.4 has raised is a post-grant objection for revoking the grant. It is also correct that the appellant did not come up with a restoration application within the period of 18 months from the date of the patent having ceased due to non-payment of renewal fees. However, the delay in filing the restoration application is no more germane in view of the order passed by the High Court of Orissa on 12th February, 2026. The respondent No.4 after the restoration application being filed by the appellant on 24th February, 2026 has filed an objection to the said restoration application. It is also an admitted position that the High Court of Orissa by the order dated 12th February, 2026 had directed the restoration application to be considered within a period of two months from the date of the application. 6 Once the application for restoration had been made by the appellant within the time period framed by the order dated 12th February, 2026, the Controller was obliged to consider the same within the time frame provided under the said order since the said order was neither set aside nor modified by any higher forum. The objection of the Controller that the statute does not provide for any embargo in taking up the revocation application during the pendency of the restoration application if accepted will render the order of Orissa High Court dated 12th February, 2026 nugatory. Furthermore, if the revocation application is heard and allowed as in the instant case keeping the restoration application pending then the restoration application becomes infructuous. The Court/Judicial authority cannot non-suit a litigation. It is also an admitted position that the appellant and the respondent No.4 agreed to an adjournment of the revocation application on the ground that the restoration application was pending consideration as directed by the Orissa High Court vide order dated 12th February, 2026. After having consented to such adjournment it does not suit the respondent No.4 to fall back and contend that the revocation application was correctly taken up and decided by the Controller during the pendency of the restoration application which resulted in passing of the order impugned. By consenting to an adjournment the respondent No.4 has in effect acquiesced its right to proceed with the revocation application without there being any further order in the restoration application permitting the parties to proceed with the revocation application. This is because the respondent No.4 being represented by an Advocate was 7 aware that by agreeing to an adjournment it will relinquish its known right to proceed with the revocation application during the pendency of the restoration application without further order. The revocation application by the respondent no. 4 is on merits and not on the ground of default by the appellant in paying the renewal fees. In the aforesaid facts and circumstances, I find that the Controller had transgressed into the jurisdiction of an authority before whom the restoration application was pending thereby exceeded his jurisdiction while taking up the revocation application and allowing the same during the pendency of the restoration application when there was a specific direction by another High Court to consider the restoration application within two months from the date of filing of the same. The order impugned is dated 29th July, 2026 which is also passed beyond two months period from 24th February, 2026 being the time allotted by Orissa High Court vide order dated 12th February, 2026 to consider the restoration application. The order impugned dated 29th July, 2026 is, therefore, set aside. The Controller is directed to hear out the restoration application first and thereafter depending upon the result of the restoration application shall proceed with the post-grant revocation application filed by the respondent No.4, if necessary after affording the appellant a proper opportunity of hearing. It is made clear that this Court has not gone into the merits of either the restoration application or the revocation application. The Controller, therefore, 8 shall be free to decide all points raised independently without being influenced by any observation made in this order. It is further clarified that since the application for restoration by the appellant and the application for revocation by the respondent No.4 are pending before two different officers of the same department who are below the rank of the Controller, the appropriate Controller either himself shall decide the two applications in the order as directed or shall delegate the same to an officer before whom neither the appellant’s restoration application nor the revocation application of the respondent No.4 are pending. The appeal is, accordingly, disposed of. (ARINDAM MUKHERJEE, J.) Sb/snn.