Class Presentation on LAW 482 Intellectual Property

Relevant Court Cases : Case No.1

Submitted By: Susmita Aryal [Link].B 6th Semester, Roll No.41
Submitted To: Adjunct Faculty Dipak Silwal, Nepal Law Campus
Date: 2078/01/23
Suresh Chandra Agrawal v. Department of Industry and Commerce
Decision of Division Bench
Decision No .4606
NKP 2049
Honourable justice : Trilok Pratap Rana
Honourable 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 send 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 send 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 Courts 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.