In Indian patent law, a party aggrieved by a decision of the Controller has two primary remedies: filing an appeal under Section 117A or seeking a review under Section 77(1)(f) of the Patents Act, 1970. Although the review petition is a statutory remedy, it remains one of the most misunderstood procedural tools in Indian patent practice. A review petition is not a procedural shortcut; it is a limited remedy available only in exceptional circumstances under law. Nonetheless, parties frequently pursue this remedy under mistaken assumptions about its accessibility and utility. This article examines the doctrinal foundation, judicial interpretation, and practical constraints of review petitions before the Controller, aiming to assist practitioners in making strategically sound decisions.
Section 77(1)(f) of the Act empowers the Controller to review his own decisions, conferring upon him powers akin to those of a civil court while adjudicating matters under the Act. This power is procedural in nature and must be read in conjunction with Rule 130 of the Patents Rules, 2003, which prescribes the form, timeline, and manner for filing a review. The application must be submitted in Form 24 within one month from the date of communication of the impugned order, with a possible extension of one additional month through Form 4. However, these provisions do not confer a substantive right of review; they merely provide the procedural scaffolding for a review to be entertained. It is important to note that the grounds on which such review may be sought are not found in the Patents Act itself but are governed by the Code of Civil Procedure, 1908, which thereby imports a stringent and judicially interpreted threshold into patent practice. It is also important to bear in mind that the Controller, while having powers akin to a civil court under Section 77, is not a court of plenary jurisdiction. Being a quasi-judicial authority operating under a specialized statute, the Controller’s powers of review are exercised with administrative restraint, keeping in mind the limited mandate and the need to avoid judicial overreach within the patent office.
This threshold assumes even greater significance given that an order passed on a review petition is not appealable under Section 117A of the Act, thus foreclosing a second opportunity for correction or reconsideration through appellate oversight. The legal position that an order passed on a review petition is not appealable under Section 117A has also been affirmed judicially by the Hon’ble Madras High Court in Caleb Suresh Motupalli v. Controller of Patents[1], wherein it was held that, in the absence of a statutory appellate remedy against an order-in-review, any appeal preferred against such an order is liable to be dismissed at the threshold. In such cases, the only recourse that may remain is to invoke the writ jurisdiction of the High Courts under Article 226 of the Constitution, but this is an extraordinary remedy, available only in cases involving grave jurisdictional errors, violation of natural justice, or manifest arbitrariness.
Order 47 Rule 1 of the Code of Civil Procedure, 1908[2] sets out the substantive grounds upon which such review may be maintained. These grounds are threefold: (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced at the time of the original decision; (ii) a mistake or error apparent on the face of the record; or (iii) any other sufficient reason, provided that such reason is analogous to the first two grounds. As clarified in the landmark judgment of Chajju Ram vs Neki[3], the phrase “any other sufficient reason” must be interpreted ejusdem generis, meaning it must be “such a reason which is analogous to those specified immediately previously,” i.e., either the discovery of new and important evidence or an error apparent on the face of the record.
Importantly, these grounds do not permit a re-hearing of the matter on merits or a substitution of the Controller’s reasoning with that of the applicant. Courts have consistently held that a review is not an appeal in disguise, and mere dissatisfaction with the outcome or a shift in legal strategy cannot justify invoking the review jurisdiction. In Parison Devi v. Sumitri Devi[4], the Hon’ble Supreme Court observed that:
“Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has limited purpose and cannot be allowed to be “an appeal in disguise.”
Similarly, in State of West Bengal & Ors vs Kamal Sengupta & Anr[5], the Apex Court reiterated the meaning of “error apparent on the face of the record” in the context of Order 47 Rule 1 CPC, holding that:
“An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record.”
In the context of “discovery of new and important matter or evidence“, the standard is equally rigorous. It is not enough to merely produce additional material; the applicant must demonstrate that such evidence is both materially significant and could not, despite due diligence, have been presented earlier. In Smt. Siddhi Bai v. Badri Prasad (2025)[6], relying upon the Supreme Court’s ruling in State of West Bengal v. Kamal Sengupta (supra), the Court dismissed a review petition, while observing:
“…mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.”
These standards are consistently enforced by the Indian Patent Office in its administrative decisions[7], wherein the Controllers has dismissed review petitions that sought to reopen the merits of the case without demonstrating any error apparent on the face of the record or discovery of new and material evidence. Patent applicants and practitioners must therefore approach review petitions with strategic restraint. Considering the doctrinal rigidity and judicially narrow interpretation of review jurisdiction, patent practitioners must adopt a principled and strategic approach before invoking Section 77(1)(f). A review petition should only be considered when:
- There is a clear and self-evident error- for example, citing the wrong section of the Act, omitting a key submission during analysis, or failing to consider a document that is part of the record;
- New and critical evidence has come to light which was genuinely unavailable despite diligence;
- A clerical or procedural lapse has materially affected the outcome of the order.
Conversely, when the Controller’s decision turns on discretion, expert evaluation, or interpretation of evidence, the proper, and often only recourse lies in appellate review under Section 117A. In Huhtamaki Oyj v. Controller of Patents[8], the Hon’ble Delhi High Court came down heavily on the Patent Office’s non-speaking orders and emphasized the role of appellate oversight in correcting such deficiencies. Such decisions show that appellate scrutiny under Section 117A remains a viable and efficacious remedy for parties aggrieved by procedural lapses or substantive evaluation errors.
It is equally critical to recognize that filing a review petition does not automatically stay or suspend the effect of the impugned decision. If a patent has been granted, published, or refused, such consequences continue to operate unless specifically stayed by an appropriate authority. Therefore, an ill-planned review can not only fail but also close the door to further remedies.
In sum, review petitions under Section 77(1)(f) are legal scalpels, not hammers. They serve a specific corrective function and must be employed with precision. In most cases, especially where evaluative findings or procedural unfairness are at issue, appeals under Section 117A remain the more appropriate and reliable remedy.
[2] The Code of Civil Procedure, 1908
[7] Application Numbers 1337/MUM/2009, 201718031529 & 201611037944
[8] C.A.(COMM.IPD-PAT) 158/2022
Note: This article is written on 30th May, 2025 as per prevailing jurisprudence.
