Email Is Enough: Calcutta High Court Holds Postal Delivery Not Mandatory for Serving First Examination Reports

"May does not mean must" –  In a ruling that underscores the transition of India’s patent system into the digital era, the Calcutta High Court  dismissed a writ petition challenging the rejection of a patent application for “Herbal Anti-Venom against Catfish Sting”. The Court upheld that service of the First Examination Report (FER) via email is legally valid, even in the absence of registered postal service.

Justice Ravi Krishan Kapur declared, “There is no merit in the submission that postal communication as stipulated under section 149 of the Act is mandatory and absolute.” The Court emphasized that Section 149 of the Patents Act, 1970, which deals with service of notices, uses the word “may”, indicating discretion and not compulsion.

“Deemed Abandonment Kicks in When Timelines Lapse — There’s No Going Back”

“Upon failure to comply within the stipulated time period, an application is deemed to be abandoned. Such prohibition is mandatory and not merely procedural,” the Court stated, sealing the fate of the patent application which was left unanswered after the FER was served on July 4, 2022.

The applicant had failed to respond even within the extended three-month period, and made a belated attempt to revive the application more than a year later by filing Form 4 on June 29, 2024. The Court found such action impermissible, observing, “Once the application is deemed abandoned, it ceases to exist in law.”

“Digital Is the Default: E-Mail Service Recognised by Statute and Procedure”

Highlighting the evolving infrastructure of patent administration, the Court observed that email service has been firmly entrenched in law since Office Order No. 23 of 2016, which directed that FERs shall be issued only via email. Quoting the order, the Court reiterated, “The First Statement of Objections (FERs) shall henceforth be issued by respective Controllers electronically and shall be sent to the agents/applicant through e-mails ONLY.”

Justice Kapur noted that this system aligns with Rules 5 and 6 of the Patents Rules, 2003, as amended in 2016, which now expressly permit and validate service by email. Further backing came from the Information Technology Act, 2000, which equates electronic communication with traditional service in legal proceedings.

“Applicants Must Watch Their Inbox: Responsibility to Monitor Email Lies with the Inventor”

The Court found no merit in the petitioner’s excuse that the email was overlooked due to the college’s anniversary celebrations. Since the petitioner had voluntarily provided the email ID, the Court held him to be “fully bound by the service effected electronically.”

Justice Kapur concluded, “It is difficult to accept the submission that there has been no valid service of the FER under the Act.”

“Strict Timelines Cannot Be Bent: Patent Regime Is a Time-Bound Code”

The Court reaffirmed that the Patents Act and Rules form a strict and self-contained code, and the judiciary cannot dilute or stretch timelines under its writ jurisdiction. Citing the Delhi High Court’s view in Nippon Steel Corporation v. Union of India, the Court noted, “It is not possible for this Court to accept the submission that time-limits... are merely directory and not mandatory.”

Even referring to other cases like Carlos Alberto Perez Lafuente v. Union of India and Kylin Sanitary Technology v. Union of India, the Court made it clear that absence of postal service does not revive a patent application abandoned due to delay.

“When ‘May’ Means ‘Choice’: Postal Service Not the Sole Mode Under Section 149”

Interpreting Section 149, the Court made a critical observation: “The use of the word ‘may’ denotes a permissive and non-mandatory approach. ‘May’ does not mean ‘must’. There is no exclusivity attached to any single mode of service.”

Justice Kapur held that Rules framed under Section 159(2)(vi) clearly authorize alternative methods, including email, and harmonize perfectly with the Act. He explained, “The Rules do not override the Act but supplement it — and in doing so, empower the Patent Office to use efficient digital methods.”

“Strict in Law, Swift in Technology: Patent System Must Balance Timeliness and Modernisation”

Rejecting the plea for condonation based on technicality of non-postal service, the Court stressed that India’s patent system is designed to operate efficiently within fixed timeframes, and “Courts cannot insert relaxation where none exists in the statute.”

The petitioner’s reliance on classic precedent regarding procedural compliance — such as J.K. Cotton Spinning, Jagdish Singh, and Jayalalithaa v. State of Karnataka — was dismissed as inapplicable. The Court concluded, “Those cases pertain to statutes with mandatory language. Here, the legislature left discretion open by using the word ‘may’.”

No Relief for Delay – FER Service by Email is Sufficient

In closing the case, the Court delivered a firm message: “There is no merit in the writ petition. WPA-IPD No. 2 of 2025 stands dismissed.”

With this decision, the Calcutta High Court reinforces the digital transformation of patent governance, holding that email is not just a convenience, but a legitimate, legal method of service. The ruling stands as a warning to applicants: in the digital age, ignoring your inbox can cost your invention.

Date of Decision: January 19, 2026