The Petitioner sought quashing of the “deemed to be withdrawn” status of the application No. 5272/DELNP/2008 under section 11B and sought restoration of the said application and for proceeding further with the same. The Petitioner also sought direction to the respondents to correct the clerical/typographical error in the number of the Patent application in request for examination and other documents to read as 5272/DELNP/2008 instead of 6272/DELNP/2008.
According to the Delhi High Court (DHC) (M_S._Iritech_Inc_vs_The_Controller_Of_Patents_on_20_April,_2017 ), applicants can correct inadvertent errors, provided that they are fixed in time. It was held that –
“when the error in Form 18 was an apparent clerical error… and… the request for examination was filed within the 48-month period and even the request for correction of the clerical error was made prior to the expiry of the period of 48 months and prior to the application for grant of patent being deemed to have been withdrawn… the action of the Respondents in deeming the Indian National Phase application No. 5272/DELNP/2008 as deemed to be withdrawn, is set aside.“
The court interpreted the provisions of Section 78 relating to the power of the controller to correct the clerical error and held that:
“Section 78 of the Act, inter-alia, empowers the controller to correct any clerical error in any patent or in any specification or other document filed in pursuance of such application or in any application for a patent or any clerical error in any matter which is entered in the register. The correction can be made either upon a request in writing made by any person interested and accompanied by the prescribed fee, or without such a request.”
The ruling further states that –
“Since there is no form prescribed by the Act or the Rules for seeking correction under Section 78 of the Act, even a letter would be sufficient. The petitioner along with the letter had enclosed the corrected Form 18 and the corrected covering letter. The request was made prior to the expiry of the period of 48 months. The requisite fee was also paid thereon. There is no reason as to why the Respondents should not have considered the same.”
In view of this, The “Deemed to be withdrawn” status of the application was accordingly quashed.