April, 2024 | CA B K Goyal & Co LLP

Opposition to the patent —(1) Where an application for a patent has been published but apatent has not been granted, any person may, in writing, represent by way of opposition tothe Controller against the grant of patent on the ground—(a) that the applicant for the patent or the person under or through whom he claims,wrongfully obtained the invention or any part thereof from him or from a person under orthrough whom he claims;(b) that the invention so far as claimed in any claim of the complete specification has beenpublished before the priority date of the claim—(i) in any specification filed in pursuance of an application for a patent made in Indiaon or after the 1st day of January, 1912; or(ii) in India or elsewhere, in any other document:Provided that the ground specified in sub-clause (ii) shall not be availablewhere such publication does not constitute an anticipation of the invention byvirtue of sub-section (2) or subsection (3) of section 29;(c) that the invention so far as claimed in any claim of the complete specification is claimed ina claim of a complete specification published on or after priority date of the applicant’sclaim and filed in pursuance of an application for a patent in India, being a claim of whichthe priority date is earlier than that of the applicant’s claim;(d) that the invention so far as claimed in any claim of the complete specification was publiclyknown or publicly used in India before the priority date of that claim.Explanation.—For the purposes of this clause, an invention relating to a process forwhich a patent is claimed shall be deemed to have been publicly known or publicly used inIndia before the priority date of the claim if a product made by that process had alreadybeen imported into India before that date except where such importation has been for thepurpose of reasonable trial or experiment only;(e) that the invention so far as claimed in any claim of the complete specification is obvious andclearly does not involve any inventive step, having regard to the matter published asTHE PATENTS ACT, 1970Page 26mentioned in clause (b) or having regard to what was used in India before the prioritydate of the applicant’s claim;(f) that the subject of any claim of the complete specification is not an invention within themeaning of this Act, or is not patentable under this Act;(g) that the complete specification does not sufficiently and clearly describe the invention orthe method by which it is to be performed;(h) that the applicant has failed to disclose to the Controller the information required by section8 or has furnished the information which in any material particular was false to hisknowledge;(i) that in the case of a convention application, the application was not made within twelvemonths from the date of the first application for protection for the invention made in aconvention country by the applicant or a person from whom he derives title;(j) that the complete specification does not disclose or wrongly mentions the source orgeographical origin of biological material used for the invention;(k) that the invention so far as claimed in any claim of the complete specification is anticipatedhaving regard to the knowledge, oral or otherwise, available within any local or indigenouscommunity in India or elsewhere,but on no other ground, and the Controller shall, if requested by such person for being heard,hear him and dispose of such representation in such manner and within such period as may beprescribed.(2) At any time after the grant of patent but before the expiry of a period of one year from thedate of publication of grant of a patent, any person interested may give notice of oppositionto the Controller in the prescribed manner on any of the following grounds, namely:—(a) that the patentee or the person under or through whom he claims, wrongfullyobtained the invention or any part thereof from him or from a person under orthrough whom he claims;(b) that the invention so far as claimed in any claim of the complete specification hasbeen published before the priority date of the claim—(i) in any specification filed in pursuance of an application for a patent made in Indiaon or after the 1st day of January, 1912; or(ii) in India or elsewhere, in any other document:Provided that the ground specified in sub-clause (ii) shall not be available wheresuch publication does not constitute an anticipation of the invention by virtue ofsub-section (2) or sub-section (3) of section 29;(c) that the invention so far as claimed in any claim of the complete specification isclaimed in a claim of a complete specification published on or after the priority dateof the claim of the patentee and filed in pursuance of an application for a patent inIndia, being a claim of which the priority date is earlier than that of the claim of thepatentee;(d) that the invention so far as claimed in any claim of the complete specification waspublicly known or publicly used in India before the priority date of that claim.Explanation.—For the purposes of this clause, an invention relating to a processfor which a patent is granted shall be deemed to have been publicly known orpublicly used in India before the priority date of the claim if a product made by thatprocess had already been imported into India before that date except where suchimportation has been for the purpose of reasonable trial or experiment only;(e) that the invention so far as claimed in any claim of the complete specification isobvious and clearly does not involve any inventive step, having regard to the matterpublished as mentioned in clause (b) or having regard to what was used in Indiabefore the priority date of the claim;(f) that the subject of any claim of the complete specification is not an invention withinthe meaning of this Act, or is not patentable under this Act;(g) that the complete specification does not sufficiently and clearly describe theinvention or the method by which it is to be performed;(h) that the patentee has failed to disclose to the Controller the information required bysection 8 or has furnished the information

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Section 24F – THE PATENTS ACT, 1970

THE PATENTS ACT, 1970 / CA Bhuvnesh Goyal / April 25, 2024

Section 24F – THE PATENTS ACT, 1970 Read More »

Section 24E – THE PATENTS ACT, 1970

THE PATENTS ACT, 1970 / CA Bhuvnesh Goyal / April 25, 2024

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Applicability of Section 62-(1) of the Companies Act, 2013

Companies Act 2013 / CA Bhuvnesh Goyal / April 25, 2024

As per Section 62(1) of the Companies act, 2013 if the Company decides to issue fresh shares, these should be offered to existing shareholders in proportion to existing persons who are holders of equity shares. ‘Right Issue’ means offering shares to existing members in proportion to their existing share holding. The object is, of course, to ensureequitable distribution of Shares and the proportion of voting rights is not affected by issue of Fresh shares. Section 62(1) of the Companies Act, 2013 (‘CA, 2013’) to ‘Preference Shares’. First, it is necessary to know the scope of Section 62 of the CA, 2013 which provides for issue of rights shares to existing equity shareholders. It also provides for issuance of shares to employees under Employees Stock Option Scheme and issue of shares on Preferential Basis. Sub-section (4) to (6) relate to conversion of Loans granted/Debentures subscribed by the Central Government into shares of the company. Overview of Section 62 of Companies Act, 2013 Section 62 of the Act deals with the further issue of share capital in the company. A company that is limited by shares can increase its capital by issuing new shares according to the Articles of Association of the company. The companies usually do not issue all of their shares at once. They do so whenever there is a need for additional funds for the expansion, diversification, or modernization of the company. However, the directors of the company cannot issue shares at their discretion. If this power is given to them, they may misuse it by issuing and allotting the shares to their family members and relatives. In order to curtail this misuse, the Act under Section 62 provides certain conditions for the issuance of shares. This Section provides for the further issue of shares that are to be first offered to the existing members of the company. These are known as right shares, and this right of the members is known as the right of preemption. Applicability of Section 62(1) of Companies Act, 2013 The meaning of Section 62 of the Companies Act, 2013, which provides for the issuance of rights shares to existing equity shareholders, must be understood. It also allows for the issuance of shares to employees through the Employees Stock Option Scheme and the issuance of shares on a preferential basis. Subsections (4) to (6) deal with the conversion of loans granted/debentures subscribed for by the Central Government into company shares. By virtue of the provisions of clause (a) of section 62(1) of the Companies Act, 2013, which speaks to offer to holders of equity shares, it may be inferred that issue of preference shares falls outside the ambit of this section. The opening part of section 62(1) of the Companies Act, 2013 generally refers to an increase in the subscribed capital of the company by allotment of further shares, without restricting the same to the equity shares. Since capital includes both Equity Share Capital and Preference Share Capital, it would appear that Section 62(1) of the Companies Act, 2013 would apply in the event of the issuance of additional shares (i.e., Preference Shares). Increase in subscribed capital According to Section 62(1), when a company having a share capital wants to increase its subscribed capital by issuing further shares, it can be done so following the procedure given therein. It provides a procedure for the issuance of rights shares, shares under the ESOP Scheme and shares that are given on the basis of preference. Provisions related to right issue or rights shares Whenever a company wishes to increase its subscribed capital, it can do so by offering the shares first to the existing members of the company or to its members holding equity shares in proportion to the paid-up shares. These are known as “rights shares” and are given under Section 62(1)(a). In order to do so, the following conditions must be satisfied: The offer must be made by issuing a notice which specifies the number of shares offered. It must contain a limiting time period which must not be less than 15 days and not exceed 30 days from the date of the offer. If the offer is not accepted within this time period, it will be deemed to have been declined. The existing shareholder has the right to renounce the shares that are offered to him in favour of any other person unless the articles otherwise provide and so the notice will also contain a statement regarding this right as mentioned under Section 62(1)(a)(ii) of the Act. After the expiry of the above-mentioned time period or if the shareholder declines to accept the shares offered to him, the board of directors will dispose of them in a manner which is not harmful or disadvantageous to the shareholder and the company. This is provided under Section 62(1)(a)(iii). Exception When 90% of the members of the private companies have given their consent either in writing or in electronic mode then the lesser periods shall be applicable than those which are mentioned under these provisions. In the case of R. Khemka v. Deccan Enterprises (P) Ltd. (1998), it was held by the Andhra High Court that if a member or shareholder does not respond to the offers made by the company, it means that he is not inclined to subscribe to additional shares offered to him and thereby gives implied consent for the allotment of shares to others. Further, in the case of M.S. Madhusoodanan v. Kerala Kaumudi (P.) Ltd. (2003), the Supre Court held that if shareholders are not given the notice to apply for allotment of shares, then subsequent allotment of shares to others is invalid. Benefits of Rights Issue Making a rights issue, compared to raising capital through a preferential allotment or private placement, provides the company with two additional advantages. First, unlike a private placement or preferential allotment, a rights issue does not require shareholder approval by special resolution. Second, the board of directors has absolute discretion in determining the price of the securities, which need

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April 2024