unit 2

UNIT 2Patent law: Application for patents, procedure for grants of patents, working of patents, compulsory licenses and revocation, renewal of lapsed patents. Law relating to consumer protection: Consumer and consumer dispute- consumer protection courts – consumer dispute redressal agencies.--------------------------------------------------------------------------------------------------- ----------------------------------------------------------

Patent Law

Patent law is under increasing public attention, WIPO provides a platform for member States and intergovernmental and non-governmental organizations to coordinate efforts in discussing international norms, and it addresses various issues relating to the international aspects of the patent system, including current and emerging issues of patent law.

Patent Law in India

The entire patent system and the patent law in India are governed by the superintendence of General Controller of designs patients, trademark patent and by geographical indications. This office of general controller runs under department of industrial promotions and policy. There are four patent office in India, Head office is located in kolkata and other offices are located in Delhi, Chennai and Mumbai. The examiners of each patent office have to release their work according to the direction of controllers. Patent law is complex, which is essential to obtain the services of an attorney who specializes in patent law. Patent law is one of the fastest growing fields of law, which deals with issues surrounding the protection of ideas. By protecting the rights of the inventor, the government can be sure that people will continue to think of unique and new ideas to share with the world.

Patent law of India has the following most main features, which decide whether a patent will be granted or not:- The Object: The object of patent law in India is to encourage scientific research, new technology, and industrial progress. Inventive Step: The fundamental principle of Patent law is granted only for an invention.

Application for patents

A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention (the patent specification), together with official forms and correspondence relating to the application. The term patent application is also used to refer to the process of applying for a patent, or to the patent specification itself (i.e. the content of the document filed with a view to initiating the process of applying for a patent.

In order to obtain the grant of a patent, a person, either legal or natural, must file an application at a patent office with jurisdiction to grant a patent in the geographic area over which coverage is required. This will often be a national patent office but could be a regional body, such as the European Patent Office. Once the patent specification complies with the laws of the office concerned, a patent may be granted for the invention described and claimed by the specification.

The process of "negotiating" or "arguing" with a patent office for the grant of a patent, and interaction with a patent office with regard to a patent after its grant, is known as patent prosecution. Patent prosecution is distinct from patent litigation which relates to legal proceedings for infringement of a patent after it is granted.

Definition:-As pointed out by Peter Prescott QC, the expression "patent application" is ambiguous. It can bear two different meanings:

1. The legal state of affairs that is constituted when a person requests the competent authority to grant him a patent and that request is still outstanding.

2. The content of the document or documents which that person filed with a view to initiating the above; most pertinently, a description of the invention together with at least one claim purporting to define it.

The first of those – the request for a legal privilege to which you will be entitled if your application be well founded – is an institutional fact, and is temporal by its very nature. It ceases to exist as soon as your application is withdrawn, is refused, or is granted. The second of those, the informational content of the document as filed (or in other, prosaic words, the piece of paper), is a historical fact that never goes away, no matter what the Patent Office does, or anyone else does. It exists in perpetuity.The expression "application" is often employed without being conscious of its ambiguity. The expression is capable of misleading even experienced professionals.

Premendra sahu (Asst Professor) CCEM

TYPES OF APPLICATIONS

Patent office’s may define a number of types of applications, each offering different benefits and being useful in different situations. Each office utilises different names for the types of applications, but the general groups are detailed below. Within each group there are specific type of applications, such as utility patents, plant patents, and design patents, each of which can have their own substantive and procedural rules.

Standard application:-A standard patent application is a patent application containing all of the necessary parts (e.g. a written description of the invention and claims) that are required for the grant of a patent. A standard patent may or may not result in the grant of a patent depending upon the outcome of an examination by the patent office it is filed in. In the U.S., a standard patent application is referred to as a "non-provisional" application.

Provisional applications:-Provisional patent applications can be filed at many patent offices, such as the USPTO in the U.S. A provisional application provides an opportunity to place an application on file to obtain a filing date (thereby securing a priority date), but without the expense and complexity of a standard patent application. The disclosure in a provisional application may, within a limited time (one year in the U.S.), be incorporated into a standard patent application if a patent is to be pursued. Otherwise, the provisional application expires. No enforceable rights can be obtained solely through the filing of a provisional application.

Continuation applications:-In certain offices a patent application can be filed as a continuation of a previous application. Such an application is a convenient method of including material from a previous application in a new application when the priority year has expired and further refinement is needed. Various types of continuation application are possible, such as continuation and continuation-in-part.

PATENT APPLICATION Process:-

Patent application is a document filed in the Patent Office as an application for grant of a Patent for an invention accompanying a set of claim. It should be in a format prescribed under the Indian Patent Acts and Rules. The patent application is accompanied with a specification consisting of a title, field of the invention, objective of the invention, description, working examples and drawings showing how the invention is made and operates. It contains a set of claims which define, in words, the exclusive rights sought by the inventor for the invention.

The patent application should be accompanied with the following documents: Form 1 - Application for grant of patentForm 2 - two copies of the complete patent specificationTwo sets of the drawing figures, if any, one set of which should be in thick A-4 size white sheets; Executed Form 26, power of Attorney Form 5 - Declaration of the inventorship signed by the applicantPriority documents, if any, if not in English, English translation thereof;Form 3 - The Statement and Undertaking regarding corresponding foreign filings.International Search Report for National Phase entry in IndiaA person seeking to obtain a patent must file a patent application in a Patent Office falling under its jurisdiction. Once the patent application complies with the Patent Act and Rules, it is processed for further prosecution.Type of patent application

1. Patent can be filed in India as 2. Provisional application 3. Complete specification4. PCT application5. Conventional application6. National phase application

A provisional patent application is usually filed without a set of claims. The main purpose of filing a provisional application is to obtain an earliest priority date which will prevent competitors to work in the relevant technology. A complete specification is filed within 12 months from the date of filing of the priority application which sets out the scope of the invention with the claims. A number is assigned to the patent application by the Patent office bearing the jurisdiction of the Patent Office and year of filing. The number is assigned to a domestic patent application as xxxx/DEL/2011.


PATENT PROCESS

The process for obtaining a patent in India :

Provisional Application/Complete Application:- Filing a provisional or complete application is the first step to the registration of the patent in India. The date of filing the provisional application is known as the date of the patent. A provisional application can be filed without a set of claims. On the other hand a complete application should be filed with a set of claim. Timeline for filing a complete specification is 12 months from the date of priority or date of filing of the provisional application. No extension is available for this case. However, post dating for a maximum period of six months is possible by requesting to the Controller one month before the expiration of such a time period.

PCT International Application:- For an Indian applicant who has filed a provisional application in India, a PCT application is to be filed within 12 months from the date of priority or date of filing of the priority application. No extension is available for this case.

Conventional Application :- For an Indian applicant who has filed a provisional application in India, a Conventional application is to be filed within 12 months from the date of priority or date of filing of the priority application. No extension is available for this case. Similarly, for other countries who wish to file a patent application in India under Paris Convention is to file a conventional application by taking a priority from a prior application within the time period of 12 months.

National Phase Application:- National phase applications are filed in India through PCT within the time period of 31 months from the date of filing of the priority application.

Publication :- Patent applications are published after the 18th months from the date of filing of the priority application. However, the applicant request for an early publication on form 9 by paying the prescribed fees.

Pre-grant Opposition :- After the publication of the patent application, any person can file a pre-grant opposition by way of representation within 6 months from the date of publication.

Examination :- Examination under the Indian Patents Act 1970 is not automatic. The applicant or a third party can request for an examination on form 18 in the Patent Office within 48 months from the date of priority of the application. Expressed examination can be requested by an applicant by paying the prescribed fees. However, application will be examined only after the publication of the application.

Issued of first examination report. :- First examination report should be replied within 12 months.

Notice of Allowance/ grant of the patent /rejection of the patent application :- The controller on the basis of the office action response by the applicant either accepts the application or rejects the application

WORKING OF PATENTS

1. Patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay.

2. The Controller has the power to call for the information such as periodical statements as to the extent to which the patented invention has been commercially worked in India, as may be specified in the notice issued to that effect at any time during the continuance of the Patent

3. A patentee or a licensee shall furnish such information within two months from the date of such notice or within such further time as the Controller may allow.

4. The patentee and every licensee shall furnish a statement as to the extent to which the patented invention has been worked on a commercial scale in India, in Form 27, in respect of every calendar year, within three months of the end of each year

5. Patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay.

6. Patents are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article.7. The protection and enforcement of Patent rights contribute to the promotion of technological innovation and to the transfer and

dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

8. Patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest especially in sectors of vital importance for socio-economic and technological development of India.

9. Patents granted do not in any way prohibit Central Government in taking measures to protect public health.10. The Patent right shall not be abused by the patentee or person deriving title or interest on Patent from the patentee, and the

patentee or a person deriving title or interest on Patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

11. Patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.


12. Patented inventions are worked on a commercial scale in the territory of India without undue delay and to the fullest extent that is reasonably practicable;

13. The interests of any person for the time being working or developing an invention in the territory of India under the protection of a patent are not unfairly prejudiced.

COMPULSORY LICENSE

A compulsory license, also known as statutory license or mandatory collective management, provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of arbitration. In essence, under compulsory license, an individual or company seeking to use a patent can do so without seeking the patent holder's consent, and pays the patent holder a set fee for the license.

Copyright law :- In a number of countries copyright law provides for compulsory licenses of copyrighted works for specific uses. In many cases the remuneration or royalties received for a copyrighted work under compulsory license are specified by local law, but may also be subject to negotiation. Compulsory licensing may be established through negotiating licenses that provide terms within the parameters of the compulsory license.[1] Essentially compulsory licensing provide that copyright owners may only exercise the exclusive rights granted to them under copyright law in a certain way and through a certain system.

patent :- Many patent law systems provide for the granting of compulsory licenses in a variety of situations. The Paris Convention of 1883 provides that each contracting State may take legislative measures for the grant of compulsory licenses. Article 5A.(2) of the Paris Convention reads:"Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work." [18] (See also Article 5A.(3) to (5) of the Paris Convention.) According to historian Adrian Johns, the idea of compulsory licensing "seems to have originated as a serious proposition in the 1830s, although predecessors can be traced back into the eighteenth century," and it was popular in the British anti-patent movement of the 1850s and 1860s.[19] More recently an area of fierce debate has been that of drugs for treating serious diseases such as malaria, HIV and AIDS. Such drugs are widely available in the western world and would help to manage the epidemic of these diseases in developing countries. However, such drugs are too expensive for developing countries and generally protected by patents

India :- In March 2012, India granted its first compulsory license ever. The license was granted to Indian generic drug manufacturer Natco Pharma Ltd for Sorafenib tosylate, a cancer drug patented by Bayer. Non-governmental groups reportedly welcomed the decision.

Compulsory License :- An application for grant of a compulsory license may be made under the following provisions:

Section 84. , Section 91., Section 92. Section 92A. Compulsory License under Section 84 :- Any person interested may make an application to the Controller for grant of Compulsory License for a patent after the expiry of three years from the “date of grant” of the patent on the following grounds:

1. that the reasonable requirements of public with respect to the patented invention have not been satisfied, or2. that the patented invention is not available to the public at reasonably affordable price, or3. that the patented invention is not worked in the territory of India.

Such an application may also be made by the licensee.b. No person shall be stopped from alleging the grounds i-iii above by reason of any admission made by him in the licence or otherwise or by reason of his having accepted such a licence.c. In considering such an application, the Controller shall take into account-

1. the nature of the invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention;

2. the ability of the applicant to work the invention to the public advantage;3. the capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted;4. as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such

efforts have not been successful within a reasonable period as the Controller may deem fit. Reasonable period shall be construed as a period not ordinarily exceeding a period of six months. However, these circumstances shall not be applicable in case of national emergency or other circumstances of extreme urgency or in case of public non-commercial use or on establishment of a ground of anti-competitive practices adopted by the patentee.

REVOCATION OF PATENT

Revocation before High Court or Appellate Board :- Any person interested or the Central Government may make a petition on any of the grounds, specified for revocation of Patent under Section 64 of the Patents Act, before the Appellate Board. A Patent may also be revoked by the High Court on a counter-claim in a suit for infringement of patent.

Grounds for revocation before the Appellate Board as well as the High Court are elaborated in Section 64.Without prejudice to the provisions contained in (a) above, a patent may be revoked by the High Court on the petition of the Central Government, if the High


Court is satisfied that the patentee has without reasonable cause failed to comply with the request of the Central Government to make, use or exercise the patented invention for the purposes of government within the meaning of Section 99 upon reasonable terms.Section 64

Revocation by Controller on direction of Central Government :-Where at any time after grant of a patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for which no patent can be granted under sub-section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962), it may direct the Controller to revoke the patent, and thereupon the Controller, after giving notice, to the patentee and every other person whose name has been entered in the register as having an interest in the patent, and after giving them an opportunity of being heard, may revoke the patent.

In such proceedings, the Controller may allow the patentee to amend the complete specification in such manner as he considers necessary instead of revoking the patent.Section 65

Revocation by Central Government :-Where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a declaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked.Revocation by Controller for non-working

1. Where, in respect of a patent, a compulsory licence has been granted, the Central Government or any person interested may, apply to the Controller for an order revoking the patent on the ground:

2. that the patented invention has not been worked in the territory of India, or 3. that reasonable requirements of the public with respect to the patented invention have not been satisfied, or 4. that the patented invention is not available to the public at a reasonably affordable price. 5. Such an application can be made only after the expiration of two years from the date of the order granting the first compulsory

licence.6. Such an application shall contain such particulars as may be prescribed, the facts upon which the application is based, and, in the

case of an application other than the one made by the Central Government, it shall also set out the nature of the applicant's interest.

7. Such applications shall ordinarily be decided within one year from the date of presentation to the Controller.

.PATENT RENEWAL Renewal fees also known as maintenance fee or annuity fees are paid in order to keep the patent in force. The renewal payment system is different in very country. In countries such as in India, renewal fees are paid only after the grant of the patent, on the other hand in some countries like Europe and UAE countries, renewal fees have to be paid from the date of national phase or conventional filing. Under section 53 of Indian Patent Act 1970, renewal fee is payable every year. The first renewal fee is payable by the third year of the patent's life, and must be paid before the patent's second anniversary. If the patent has not been issued within that period, renewal fees may be accumulated and paid immediately after the patent is sealed, or within three months of it's recordal in the Register of the Patents or within nine months by paying extension fees of 6 months on form 4. Date of payment of Renewal fees is measured from the date of the patent. No renewal fees are payable on patents of addition, unless the original patent is revoked and the patent of addition is converted into an independent patentIf renewal fees are not paid within the given time period, the patent will cease to have effect. Within the lapse period of the patent, the applicant could not charge any legal action against any third person who is exploiting the benefits of the patent. However, the applicant is given the opportunity to restore the patent under section 64 of the Indian Patent Act 1970, within 18 months of the lapse of the patent by citing an appropriate as desired by the Controller.

Service provided by an Attorney Firm Payment of renewal fees is a vital step to enforce a patent. Our firm has set up an easy and convenient system to enable the payment on time in all the countries. Our agent or attorney will remind the client about the pending annuities beforehand without any cumbersome process and will guide you with the best suggestions which will save time, money and repeated payment for attorney service.Lapsed patentA patent for which due maintenance fees were not paid within the permitted time limit, and which consequently no longer confers exclusive rights.

Law relating to consumer protection

Consumer Protection Councils:-The act provisions the central and state government to create councils at the central, state and district level to promote consumerism. These consumer protection councils have very little statutory powers and as such any direct benefit you can get as a consumer from these councils is low to none. Apart from a few exceptions, most of these councils today have been reduced to white elephant groups and groups for politicians, bureaucrats and netas to park their chamchas in! Nevertheless, although rare, there are still a handful of consumer protection councils in India that actively promote consumer protection activities.

Consumer Disputes Redressal Agencies :-This section of the act provides for the creation of consumer courts. The central government is given the responsibility to create and maintain the National Consumer Disputes Redressal Commission in New Delhi. The state


government is given the responsibility to create a State Consumer Disputes Redressal Commission at the state level and a District Consumer Disputes Redressal Forum at the district level.

District Consumer Disputes Redressal Forum:-The forum President and members are directly / indirectly appointed by the state government and he shall be eligible to be a district judge. All members of the court can have a term of up to five years or up to 65 years, whichever is earlier. The District Consumer Forum cannot conduct a hearing without the President and at least one other member.This consumer court deals with complaints where the compensation sought is less than twenty lakhs. This limit is commonly known as the 'pecuniary jurisdiction' of the District Consumer Disputes Redressal Forum. For more details on how to file a complaint with a District Consumer Court, please refer to our article about filing complaints in consumer courts

State Consumer Disputes Redressal Commission:-The law provides that the State Consumer Commission function in the state capital, but the government has the powers to move it as needed. The President of the State Consumer Commission shall be or should have been a High Court judge and should be appointed only after consultation with the Chief Justice of the High Court with the states jurisdiction. The remaining members of the commission are appointed by a committee with the President of the State Consumer Court as its chairman, and they can have a term of up to five years or up to 67 years, whichever is earlier.

National Consumer Disputes Redressal Commission:-The National Consumer Court must ordinarily be functioning in New Delhi and is presided over by a person who is currently or has been in the past a judge of the Supreme Court. The President of the National Consumer Disputes Redressal Commission (NCDRC) is appointed by the Central Government after consultation with the Chief Justice of India. The National Consumer Commission has a minimum of four other members and is appointed by a committee chaired by a Supreme Court judge as recommended by the Chief Justice of India. Members of the NCDRC can have a term of up to five years or up to 70 years, whichever is earlier.

Consumer Protection Act of 1986 - The act in itself is rosy and seems omnipotent to promote consumerism in India. The law states that the consumer courts have the authority similar to that of a Judicial Magistrate of the first class in attaching properties and arresting persons in case any of its verdicts are violated or not adhered. But in practice, the law and the consumer court system suffer from the following drawbacks:Seldom do companies pay heed to the consumer court. Their reports, orders and summons are very commonly ignored. As a result, most consumer cases drag on unnecessarily without any outcome.Seldom do companies adhere to the verdict. As a result once the verdict comes, proceedings to execute the verdict take even more time of the complainant.Consumer courts are not known to be devoid of corruption, like other courts in our country.

CONSUMER PROTECTION COURTS

Consumer Court is the name given to special purpose courts, mainly in India, that deal with cases regarding consumer disputes and grievances. These are judiciary set ups by the government to protect the consumer rights. Their main function is to maintain the fair practices by the sellers towards consumers.]Different types of Consumer Courts :-

A nation level court works for the whole country and deals with amount more than 1 crore. A state level court works at the state level with sscase valuing less than Rs.1 crore. A district level court works at the district level with cases valuing up to Rs.20 lacs.

Consumer movement

In India, the consumer movement as a social force originated with the necessity of protecting and promoting the interests of consumers against unethical and unfair trade practices. Rampant food shortages, hoarding, black marketing, adulteration of food and edible oil gave birth to the consumer movement in an organized form in the 1960s.The movement succeeded in bringing pressure. A major step was taken in 1986 by the Indian government was the enactment of the Consumer Protection Act 1986 (COPRA).In India the main function/role of consumer court is to provide some extra privilege to the consumers and to maintain the fair practice by the seller or the service provider towards the consumer. Submitting complaint is very simple and consumer has no need to hire any lawyer. The government of India has made approaching a consumer court very simple and extremely cheap as you can represent yourself without having to hire a lawyer and the court fee is just Rs100 which is about US$2

CONSUMER DISPUTE REDRESSAL AGENCIES

Establishment of Consumer Disputes Redressal Agencies. - There shall be established for thePremendra sahu (Asst Professor) CCEM

purposes of this Act, the following agencies, namely:—1. A Consumer Disputes Redressal Forum to be known as the "District Forum" established by the State Government in each district

of the State by notification:Provided that the State Government may, if it deems fit, establish more than one District Forumin a district.

2. A Consumer Disputes Redressal Commission to be known as the "State Commission"established by the State Government in the State by notification; and

3. A National Consumer Disputes Redressal Commission established by the Central Government by notification.

DISTRICT FORUM

Composition of the District Forum

(1) Each District Forum shall consist of(a) A person who is, or has been, or is qualified to be a District Judge, who shall be itsPresident;(b) Two other members, one of whom shall be a woman, who shall have the followingqualifications, namely:—

(i) Be not less than thirty-five years of age,(ii) Possess a bachelor's degree from a recognised university,(iii)Be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law,commerce, accountancy, industry, public affairs or administration

Provided that a person shall be disqualified for appointment as a member if he—

(a) Bas been convicted and sentenced to imprisonment for an offence which, in the opinion ofthe state Government involves moral turpitude; or(b) Is an undischarged insolvent; or(c) Is of unsound mind and stands so declared by a competent court; or(d) Has been removed or dismissed from the service of the Government or a body corporateowned or controlled by the Government; or(e) Has, in the opinion of the state Government, such financial or other interest as is likely toaffect prejudicially the discharge by him of his functions as a member; or(f) Has such other disqualifications as may be prescribed by the State Government;Every appointment under sub-section (I) shall be made by the State Government on therecommendation of a selection committee consisting of the following, namely:—(i) The President of the State Commission — Chairman.(ii) Secretary, Law Department of the State — Member.(iii) Secretary incharge of the Department dealing withconsumer affairs in the State — Member.Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.

(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section and such re-appointment is also made on the basis of the recommendation of the Selection Committee:Provided further that a member may resign his office in writing under his hand addressed tothe State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentionedin sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned: Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.

(3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.


Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum.

Jurisdiction of the District Forum

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or (b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or(c) The cause of action, wholly or in part, arises.

Manner in which complaint shall be made(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any serviceprovided or agreed to be provided may be filed with a District Forum by –

(a) The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;(b) Any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;(c) One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or(d) The Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.

(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed.(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected: Provided that a complaint shall not be rejected under this section unless an opportunity ofbeing heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received. (4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act: Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force.Explanation. - For the purpose of this section “recognised consumer association” means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force”.

Procedure on admission of complaint. —(1) The District Forum shall, on admission of a complaint, if it relates to any goods,—(a) Refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give hisversion of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;(b) Where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute in the manner specified in clauses (c) to (g);(c) Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;(d) Before any sample of the goods is referred to any appropriate laboratory under clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;(e) The District Forum shall remit the amount deposited to its credit under clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in clause (c) and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report along with such remarks as the District Forum may feel appropriate to the opposite party;


(f) If any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory(g) The District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause (/) and issue an appropriate order under section 14.

Finding of the District Forum

(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:—(a) To remove the defect pointed out by the appropriate laboratory from the goods in question;(b) To replace the goods with new goods of similar description which shall be free from any defect;(c) To return to the complainant the price, or, as the case may be, the charges paid by the complainant;(d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit

To remove the defects in goods or deficiencies in the services in question;To discontinue the unfair trade practice or the restrictive trade practice or not to repeat it; (g) Not to offer the hazardous goods for sale;To withdraw the hazardous goods from being offered for sale;To cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;To pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently

Appeal. :-Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order,in such form and manner as may be prescribed:Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant hasdeposited in the prescribed manner fifty per cent. of that amount or twenty-five thousand rupees, whichever is less:

STATE COMMISSION

Composition of the State Commission

(1) Each State Commission shall consist of—(a) A person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President: Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;(b) Not less than two, and not more than such number of members, as may be prescribed, andone of whom shall be a woman, who shall have the following qualifications, namely:—(i) Be not less than thirty-five years of age;(ii) Possess a bachelor's degree from a recognised university; and(iii)Be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law,commerce, accountancy, industry, public affairs or administration:

Provided that not more than fifty per cent. of the members shall be from amongst persons having a judicial background.Explanation. — For the purposes of this clause, the expression "persons having judicial background'' shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level: Provided further that a person shall be disqualified for appointment as a member if he—(a) Has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or(b) Is an undischarged insolvent; or(c) Is of unsound mind and stands so declared by a competent court; or(d) Has been removed or dismissed from the service of the Government or a body corporate owned Or controlled by the Government; or(e) Has, in the opinion of the State Government, such financial or other interest, as is likely to affect Prejudicially the discharge by him of his functions as a member; or(f) Has such other disqualifications as may be prescribed by the State Government.


Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a Selection Committee consisting of the following members, namely:

(i) President of the State Commission -- Chairman;(ii) Secretary of the Law Department of the State -- Member;(iii) Secretary incharge of the Department dealingwith Consumer Affairs in the State -- Member:

Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.i) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof.(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.(iii) If the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the Members areequally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer thecase for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.(2) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of, the members of the State Commission shall be such as may be prescribed by the State Government.Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the State Commission.(3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier: Provided that a member shall be eligible for re-appointment for another term of five years orup to the age of sixty-seven years, whichever is earlier, subject to the condition that he fulfills the qualifications and other condition s for appointment mentioned in clause (b) of sub-section(1) and such re-appointment is made on the basis of the recommendation of the Selection Committee: Provided further that a person appointed as a President of the State Commission shall also be eligible for re-appointment in the manner provided in clause (a) of sub-section (1) of this section: Provided also that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned.(4) Notwithstanding anything contained in sub-section (3), a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.

Jurisdiction of the State Commission

(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—(a) To entertain—(i) Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and(ii) Appeals against the orders of any District Forum within the State; and(b) To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,—(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or(b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or(c) The cause of action, wholly or in part, arises. Transfer of cases. - On the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the State if the interest of justice so requires.


Circuit Benches.-The State Commission shall ordinarily function in the State Capital but may perform its functions at such other place as the State Government may, in consultation with the State Commission, notify in the Official Gazette, from time to time.

Procedure applicable to State Commissions

The provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission. ( 18A. Omitted )

Appeals.Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less:

19A. Hearing of Appeal - An appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission: Provided that no adjournment shall be ordinarily granted by the State Commission or the National Commission, as the case may be, unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by such Commission: Provided further that the State Commission or the National Commission, as the case may be, shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act. Provided also that in the event of an appeal being disposed of after the period so specified, the State Commission or, the National Commission, as the case may be, shall record in writing the reasons for the same at the time of disposing of the said appeal.

NATIONAL COMMISSION

Composition of the National Commission

(1) The National Commission shall consist of—(a) A person who is or has been a Judge of the Supreme Court, to be appointed by the CentralGovernment, who shall be its President;Provided that no appointment under this clause shall be made except after consultation withthe Chief Justice of India;(b) Not less than four, and not more than such number of members, as may be prescribed, andone of whom shall be a woman, who shall have the following qualifications, namely:—

(i) Be not less than thirty-five years of age;(ii) Possess a bachelor's degree from a recognised university; and(iii)Be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:

Provided that not more than fifty per cent. of the members shall be from amongst the persons having a judicial background.

Explanation. — For the purposes of this clause, the expression "persons having judicial background'' shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level: Provided further that a person shall be disqualified for appointment if he—

(a) Has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude; or(b) Is an undischarged insolvent; or(c) Is of unsound mind and stands so declared by a competent court; or(d) Has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or(e) Has in the opinion of the Central Government such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) Has such other disqualifications as may be prescribed by the Central Government : Provided also that every appointment under this clause shall be made by the CentralGovernment on the recommendation of a selection committee consisting of the following, namely:(a) A person who is a Judge of the Supreme Court, —Chairman; to be nominated by the Chief Justice of India(b) The Secretary in the Department of Legal Affairs — Member; In the Government of India


(c) Secretary of the Department dealing with consumer — Member.; affairs in the Government of India

The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof.(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.(iii)if the Members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer thecase for hearing on such point or points by one or more or the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.(2) The salary or honorarium and other allowances payable to and the other terms and conditions of service of the members of the National Commission shall be such as may be prescribed by the Central Government.(3) Every member of the National Commission shall hold office for a term of five years or up to the age of seventy years, whichever is earlier: Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of seventy years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is made on the basis of the recommendation of the Selection Committee: Provided further that a person appointed as a President of the National Commission shall alsobe eligible for re-appointment in the manner provided in clause (a) of sub-section (1) : Provided also that a member may resign his office in writing under his hand addressed to the Central Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned. (4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 2002 shall continue to hold such office as President or member, as the case may be, till the completion of his term.

Jurisdiction of the National Commission

Subject to the other provisions of this Act, the National Commission shall have jurisdiction—(a) To entertain—(i) Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and(ii) Appeals against the orders of any State Commission; and(b) To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Power of and procedure applicable to the National Commission(1) The provisions of sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission.(2) Without prejudice to the provisions contained in sub-section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record. (A)Power to set aside ex parte ordersWhere an order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice.(B)Transfer of cases - On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission.(C).Circuit Benches - The National Commission shall ordinarily function at New Delhi and perform its functions at such other place as the Central Government may, in consultation with the National Commission, notify in the Official Gazette, from time to time.(D)Vacancy in the Office of the President - When the office of President of a District Forum, State Commission, or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise, unable to perform the duties of his office, these shall be performed by the senior-most member of the District Forum, the State Commission or of the National Commission, as the case may be: Provided that where a retired Judge of a High Court is a member of the National Commission, such member or where the number of such members is more than one, the senior-most person among such members, shall preside over the National Commission in the absence of President of that Commission.

AppealAny person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order of the Supreme Court within a period of thirty days from the date of the order:Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there


was sufficient cause for not filing it within that period. Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.

Finality of ordersEvery order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of thisAct, be final.(A).Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2) Notwithstanding anything contained in sub-section (1), A complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.(B) Administrative Control.—(1) The National Commission shall have administrative control over all the State Commissions in the following matters, namely:—(i) Calling for periodical return regarding the institution, disposal pendency of cases;(ii) Issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents;(iii)Generally overseeing the functioning of the State Commissions or the District Fora to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.(2) The State Commission shall have administrative control over all the District Fora within its jurisdiction in all matters referred to in sub-section (1).

Enforcement of orders of the District Forum, the State Commission or the National Commission(1) Where an interim order made under this Act, is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.

Dismissal of frivolous or vexatious complaintsWhere a complaint instituted before the District Forum, the State Commission or as the case may be, the National Commission, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order

Penalties(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

Appeal against order passed under section 27 –(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from -(i) the order made by the District Forum to the State Commission ; (ii) the order made by the State Commission to the National Commission; and(iii)the order made by the National Commission to the Supreme Court.


(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission :Provided that the State Commission or the National Commission or the Supreme Court, as thecase may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.

MODEL QUESTION PAPER

Q.1 what is the need of Patent Law?

Q.2 Explain the types of paten application.

Q.3 Define the procedure for patent registration.

Q.4 Write a short on any two

1. Compulsory license 2. Patent renewal3. Revocation of patent

Q.5 define the law relating to consumer protection.

Q.6 Describe the consumer dispute redressal agencies.


Documents

unit 2