Section 53 of Patent Act Not Unconstitutional—Delay in Grant Does Not Justify Judicial Redrafting: Calcutta High Court Upholds Validity of Statutory Term of Patents

“Patent Rights Flow Only From Grant, Not Mere Application—Court Refuses to Strike Down Section 53 Despite Delay in Grant” - Calcutta High Court emphatically dismissed an intra-court appeal seeking a declaration that Section 53 of the Patents Act, 1970 is unconstitutional. The petitioners—inventors claiming long delay in the grant of their patent—contended that the term of patent beginning from the date of application, despite years lost awaiting grant, violated their rights under Article 14 and amounted to a form of “double jeopardy.” The Division Bench, however, held that both Section 53 and Section 11A(7) of the Patents Act operate in separate spheres and cannot be treated as contradictory.

The Court observed:
“It is not the court’s function to harmonize statutes through redrafting when no constitutional infirmity exists. The patent term from the date of application is the legislative choice, and the delay in grant—however regrettable—does not render the law unconstitutional.”

The patent application in question, titled “A Fuel Cell System and an Efficient Eco-Friendly Vehicle Mounted with Fuel Cell System”, was filed on May 2, 2005, but the patent was granted only on December 28, 2012. The appellants argued that during the seven-year wait, they could not institute infringement actions under Section 11A(7), yet had to pay renewal fees from the application date, thereby losing valuable commercial years of the patent term.

They claimed that Section 53—which defines the 20-year patent term from the filing date—must be amended or struck down for being unreasonable and violating the right to property and fair treatment. Previous challenges had been rejected by the Single Bench and even during review. The present appeal pressed the constitutional challenge afresh.

Separate Fields of Operation Under the Act

The Court noted that the appellants misunderstood the distinct purposes served by Sections 11A(7) and 53. While Section 11A(7) grants provisional rights from the publication date (subject to grant), Section 53 governs the term of validity of the patent after it is granted.

“Section 11A(7) provides a protective window during pendency of application. Section 53, on the other hand, governs the duration of enforceable rights. They are not in conflict—they are complementary.”

Further, the Court underscored that patent rights are statutory in nature and not based on common law principles. Hence, the applicant’s inability to enforce rights before grant is inherent in the legal framework.

Quoting Section 53(4), the Court emphasized:

“On cessation of the patent right due to nonpayment of renewal fee or expiry of term, the subject matter of the patent enters the public domain and cannot be protected again.”

No Basis for Judicial Scrutiny of Legislative Policy

The Court refused to direct the legislature to harmonize Sections 11A(7) and 53, stating:
“It is not the function of the Court to suggest legislation. The judiciary interprets; it does not enact.”

The Court acknowledged international practices such as the U.S. model of Patent Term Adjustment (PTA), but held:
“India does not follow PTA. Our legislature has consciously chosen not to extend patent terms for processing delays. It is not for courts to impose such a model judicially.”

A committee report from the Nittoo Denko case was also cited, which concluded that PTA is inappropriate for India where a 20-year monopoly is already viewed as a long period. The Court agreed with this reasoning, adding:

“The technology cycle today is short-lived. Extending obsolete patent terms will hurt innovation rather than promote it.”

No Constitutional Violation Found

The Court rejected the appellant’s attempt to invoke Article 14 and Article 22 of the Constitution. It clarified:

“Article 22 relates to preventive detention and has no application here. As to Article 14, mere inconvenience or delay does not amount to discrimination unless arbitrariness is demonstrated, which is absent here.”

The Calcutta High Court upheld the constitutional validity of Section 53 of the Patents Act and dismissed the appeal, holding:

“The impugned provision is a considered legislative measure aligned with international obligations under TRIPS and national innovation policy. Courts cannot substitute their view merely because the outcome may appear harsh to a particular inventor.”

This ruling confirms the settled position that the patent term begins from the filing date, and delay in grant does not extend the statutory period or invalidate the law.

Date of Decision: April 22, 2025