Effective 00.00 hrs of Wednesday March 25, the Government of India (GOI) acting in its federal authority has placed the entire country of India under lockdown for 21 days – that is, until April 14, 2020 (Lockdown Period). GOI has made this order under the Disaster Management Act, 2005 (DMA) which applies to the entire country (DMA Order). The DMA Order, amongst others, says that all offices of the Government of India and the State Governments and their respective autonomous, subordinate offices shall remain closed during the Lockdown Period. There are only a few exceptions under the DMA Order which cover security agencies and certain critical government functions. IP Office is a part of the Government of India. It is not in the exceptions. IP Office is to remain closed during the Lockdown Period.
Interestingly, even prior to the above DMA order, on March 23, 2020, the Supreme Court of India (SC), taking notice of the COVID-19 situation, on its own motion, issued an order which extends the period of limitation, whether condonable or not under law, for filing of petitions/applications/suits/appeals/all other proceedings in all courts, tribunals and authorities across the country with effect from March 15, 2020 till further orders. The IP Office is a tribunal. We reached out to them for a confirmation that SC order would apply to statutory deadlines and other deadlines. However, there has been no official confirmation from the IP Office that it will implement the SC order – given that in some of the IP statutes (for example, the Trade Marks Act there is no provision for extension of statutory limitations). Though the widespread view amongst IP professionals and many distinguished members of the Supreme Court Bar is that the IP Office will be bound by the SC orders.
As we have already reported earlier (here and here), quite independent of the SC order, the IP Office had, on or before March 23, 2020, made piecemeal announcements ranging from automatic adjournment of hearings (both for Patent and Trademark matters), notification about condonation of delay in meeting any deadline under sub rule 6 of Rule 6 of Patent Rules, and extension of deadlines under Section 131 of the Trademarks Act. While the position for patent cases has been clear because the Patents Act and Rules law specifically provide for extension of deadlines, our concerns were around trademark cases where the Trademarks Act and the Rules thereunder do not have such specific provisions for grant of extension of statutory deadlines.
Following the DMA Order, the IP Office is closed and under Indian law (Section 10 of the General Clauses Act – which lays down general rules of interpretation of federal statutes – all IP statutes are federal statutes), the deadlines would get automatically extended until “the next day afterwards on which the office is open”. Unless there is an extension of the DMA Order, the IP Office should open on April 15 and then the filings could be done on April 16, 2020. So, if any of your matters have a deadline which falls during the Lockdown Period, we will continue working on those in coordination with you so that we are ready to file after the IP Office opens. We do expect that there could be glitches like non-availability of courier or notarization services which could come in the way of filings, but we will do the best we can to comply with the deadlines. Further, in the extraordinary and unprecedented situation that has arisen, we believe that IP Office will be flexible on some of the formalities. As an additional information, the online filing portal of IP Office is functional – at least as of now. We are continuing to file on-line. However, we believe that availability of on-line filing would not mean that the IP Office is “open” for the purposes of Section 10 of the General Clauses Act.
We expect the IP Office to come out with a simple comprehensive statement about automatic extension of deadlines in the circumstances. We will keep you advised of the developments as they occur.