This Paper identifies the intended and interpreted-constructed meaning of ‘Law Declared’ and seeks to cull out the principles of patent law as declared by the Supreme Court in the last 72 years.
Aqa Raza, Assistant Lecturer, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Ghayur Alam, Professor, National Law Institute University, Bhopal, Madhya Pradesh.
The Supreme Court of India (hereinafter, the Supreme Court) does not merely decide a lis in personam but also declares the law on a question that it decides to answer. The law so declared by the Supreme Court becomes binding in remby virtue of Article 141 of the Constitution \of India. Since the establishment of the Supreme Court, only three cases were decided in the 20th century on The Patents Act, 1970 including one under The Patents and Designs Act, 1911, and in 21stcentury only eleven cases have been decided under The Patents Act. Number of decisions per year is not even one. On an average, the Court has decided, 19 cases in a year; or one patent case in 1893.57 days, or in 5.18 years.
Hence, only few questions of patent law have been answered. Many patent law questions still remain unanswered. This raises a two-fold problem. One, answers are not only too little but some of them are too ambiguous, too opaque and too vague. Two, absence of answer on certain basic points of patent law further heightens the problem of legal uncertainty and opacity. A review of decisions on the patent law reveals that: (i) the Court has declared patent law only in ten decisions; (ii) in no decision the validity of The Patents Act, 1970, was challenged; (iii) the Court has unanimously answered the questions of patent law; and (iv) only some of the questions of patent law have been answered by the Supreme Court unambiguously and unequivocally but some of the questions of patent law have been left open by the Court. This Paper identifies the intended and interpreted-constructed meaning of ‘Law Declared’ and seeks to cull out the principles of patent law as declared by the Supreme Court in the last 72 years.
Published in: Journal of Intellectual Property Rights
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