CLASS PRESENTATION ON LAW 482 : INTELLECTUAL PROPERTY
Relevant Court Cases
Presented By: Karma Chhiring Tamang and Kritisha Acharya
Section: C
[Link].B 6th Semester
SURESH CHANDRA AGRAWAL V. DEPARTMENT OF INDUSTRY AND
COMMERCE
Decision: Division Bench Decision
No .4606
NKP 2049
Honorable justice : Trilok Pratap Rana
Honorable justice : Kedarnath Upadhyaya
Petitioner: Suresh Chandra Agrawal (Director) on behalf of Ashok Steel Industries Pvt. Ltd.
Respondent: Department of Industries, Tripureshwor and others.
Subject: Certiorari
FACT OF THE CASE
Ashok Steel Industries Pvt. Ltd. had been producing and selling goods of the prescribed quality
under the license issued by the Department of Industries on 2040/1/12. Luxembourg-based
Tursteg Steel Corporation had filed a complaint against petitioner in the Department of Industry
for registration of Reinforcing Concrete patent and illegal use of that patent. On 2046/4/20
Department of Industry had sent letter to the petitioner to give clarification regard to the
complaint. In response to the letter, petitioner stated that the industry has not produced any
product with the patent of Reinforcing War for Concrete and War for Reinforcing Concrete on
2046/5/25. Upon receiving the letter from respondent on 2046/7/16, petitioner had sent letter on
2046/7/20 requesting for the copy of the complaint filed.
Further, on 2046/8/16 respondent had sent notice stating “ Since rod had been produced and sold
using the said technology, it is decided necessary action will be taken as per PDTA, 2022.”
However, no copy of decision was provided. Further, even on payment of duplication fee of
Rs.800, petitioner was denied to get copy related to complaint against their industry and copy of
so-called registered patent.
APPLICANT’S CLAIM
If there is a complaint against the petitioner, they should be given opportunity to defend with a
copy of complaint. The respondent are bound to give copy of patent as per Muluki Ain, Court
Proceeding, No.211. Petitioner were deprived of their right to take necessary legal action as the
respondents did not agree to give a copy. The refusal of the respondent department to provide
a copy of the complaint related to the industry, including the patent decision, and their
illegal and faulty unilateral decision as per the law violated the petitioner’s right to equality
under Article 10(1) of Constitution of Nepal, 2019 and No.7(a)(1) (2)(3) of PDTA, 2022 as well
as Court procedure No.211. Therefore, Court is requested to issue order of certiorari or
prohibition or any order required under Article 71 of the Constitution of Nepal, 2019, to quash
the decision of the Department of Industry not to issue copy of decision and other letter denying
to provide copy requested by petitioner. Further, petitioner has raised issue on non-publication of
patent on Nepal Gazette. The main insistence of the writ petitioner is to get its rights protected
along with its right to get all the copies of related documents.
RESPONDENT’S CLAIM
Since the notice had been sent stating concerned party to be present in Office to inquire
concerned party about the notice sent from the Department of Industry to stop the petitioner’s
from producing the goods and nothing else has been done , the writ against the party shall be
dismissed.
– District Administration Office, Bara
The copy of the patent is not provided to the petitioner since the patent has not been published in
Nepal Gazette. Further, the concerned industry is notified to stop production based on the
interlocutory order of the Bagmati Zonal Court. Although the license has been issued no one has
right to illegal use of others patent. Merely, for the reason patent has not been published it
cannot be called illegal or non- fulfilment of legal procedure. Thus, the writ shall be dismissed.
- Department of Industry
Although the petitioner had not used the same label as Reinforcing concrete, it is clear from the
petitioner’s letter of 2046/5/25 that they had been producing goods affecting the patents holders
right, writ shall be dismissed.
–Tursteg Steel Corporation
SUPREME COURT’S DECISION
Patent Design and Trademark Act, 2022, Section 7 (a) (1) requires patent to be published in
Nepal Gazette except for the national interest. The written reply of the Department of Opposition
Industries does not show that the patents have not been published in the Nepal Gazette as they
are kept secret for the national interest. It does not seem to be legal to state that it is not necessary
to give a copy of patents for the fact that the patents which are required by law to be published in
the Nepal Gazette have not been published.
Pursuant to Section 7 (a) (3) of the same Act, it is mentioned that if anyone has any objection
against the patent one may file objection within 35 days of taking such copy and further it is
provided that the department should investigate and take necessary action after receiving such
complaint in sub-section (4). Therefore, since the legal process of filing a complaint will start
after the copy is taken and the investigation shall be done thereafter by the department, it is not
possible to deactivate such legal process without giving a copy.
In addition to that Principle of natural justice requires that the petitioner should be given an
opportunity to refute the complaint against them by looking at the appropriate conduct and the
copy of the evidence. If a copy of the complaint and copy of the decision to stop the production
of the petitioner is not provided, it is not certain on what basis the petitioner will refute the
allegation against them. Therefore, since the letter written by the Opposition Department of
Industry to the petitioner seems to have neglected the principle of natural justice, all the
proceedings including the letter and the decision not to give a copy to the petitioner is quashed
by the order of certiorari and the opposition Department is ordered to provide requested copy of
the documents.