Summary
Vishal Prafulsingh Solanke's patent application for a tamper-evident security seal was refused by the Assistant Controller of Patents and Designs following a pre-grant opposition. After the Single Judge of the Bombay High Court upheld the refusal on a statutory appeal under Section 117A of the Patents Act, 1970, Solanke filed a Commercial Appeal before the Division Bench under Section 13 of the Commercial Courts Act, 2015. The Division Bench dismissed the appeal as not maintainable, holding that the Controller of Patents possesses the "trappings of a Civil Court" under Section 77 of the Patents Act, that the Single Judge had exercised appellate (not original) jurisdiction, and that Section 100A of the Code of Civil Procedure, 1908 therefore operates as an absolute bar to any further intra-court appeal. The ruling parts ways with the Delhi High Court's position on the analogous question under the Trade Marks Act and confirms that patent applicants in India are limited to a single appellate forum at the High Court.
Background
When Parliament abolished the Intellectual Property Appellate Board through the Tribunals Reforms Act, 2021, it redirected patent appeals to the High Court. What seemed like administrative tidying has since generated a sharper question: once a patent applicant loses before a Single Judge on a statutory appeal, is there a further intra-court appeal to a Division Bench?
Vishal Prafulsingh Solanke and his co-appellant (“Solanke”) filed Patent Application No. 879/MUM/2015 on 17 March 2015 for an invention titled “Thread Type Tamper Evident Security Seal.” A pre-grant opposition was filed against the application under Section 25(1) of the Patents Act, 1970. Following a hearing, the Assistant Controller of Patents and Designs indicated that certain amendments to the complete specification and claims could pave the way for grant. Solanke filed the required amendments. Despite that, on 14 June 2023, the Assistant Controller refused the patent application outright, holding that the opposition succeeded under Sections 25(1)(b) and 25(1)(e) of the Act.
Solanke challenged the refusal before the Commercial Division of the Bombay High Court by filing a petition (Commercial Miscellaneous Petition No. 25369 of 2023) under Section 117A of the Patents Act, which permits appeals to the High Court against specified orders of the Controller. The Single Judge dismissed the petition on 27 March 2025, finding the Controller’s order substantiated with reasons and declining to interfere on merits. Solanke then filed an appeal (Commercial Appeal No. 13430 of 2025) before the Division Bench under Section 13(1-A) of the Commercial Courts Act, 2015. When the matter came up before the Division Bench, a threshold question immediately surfaced: did any statute actually permit this appeal?
Issues
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- Whether a Commercial Appeal under Section 13(1-A) of the Commercial Courts Act, 2015 is maintainable against a Single Judge’s decision in an appeal under Section 117A of the Patents Act, 1970.
- Whether the Single Judge exercised original or appellate jurisdiction when entertaining the Section 117A petition, and whether the resulting decision constitutes a “Judgment” (not merely an “Order”) for purposes of Section 13(1-A).
- Whether Section 100A of the Code of Civil Procedure, 1908 bars a further intra-court appeal, on the footing that the Controller of Patents and Designs has the “trappings of a Civil Court.”
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Solanke’s Arguments
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- Under the Bombay High Court’s Original Side Rules (Rule 835 read with Rule 987-A), all petitions on the Original Side take the character of a civil suit, which means the Single Judge’s decision amounts to a “Decree” under the CPC – appealable as an original decree under Section 96 CPC and, because the dispute is a commercial dispute under Section 2(1)(c)(xvii) of the Commercial Courts Act, appealable under Section 13(1-A).
- The proviso to Section 13(1-A) restricts only “orders” to those enumerated under Order XLIII CPC; a final “Judgment” or “Decree” is not caught by the proviso.
- Section 100A CPC is inapplicable because it bars further appeals only where the Single Judge decided an appeal arising from an “original or appellate decree or order” of a Civil Court, and the Controller of Patents is not a Civil Court. Merely conferring certain civil court powers under Section 77 of the Patents Act does not make the Controller a Civil Court.
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Controller’s Arguments (and Amicus)
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- Section 117A provides the sole appellate remedy against the Controller’s orders; it creates no further intra-court appeal, and the right of appeal is a creature of statute and cannot be implied.
- Section 13(2) of the Commercial Courts Act contains a non-obstante clause, i.e., no appeal shall lie from any order or decree of a Commercial Division otherwise than in accordance with the Act, overriding even Letters Patent.
- The Controller of Patents exercises extensive quasi-judicial powers, including summoning witnesses, requiring document production, receiving affidavit evidence, and examining witnesses on oath under Sections 77, 79, and 80 of the Patents Act. Cost orders are executable as a decree of a Civil Court under Section 77(2). These powers give the Controller the “trappings of a Civil Court,” bringing it squarely within the scope of Section 100A.
- Judicial precedent confirms that Section 100A bars a further intra-court appeal even where the original forum was a quasi-judicial authority rather than a Civil Court in the strict sense.
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Court’s Observations and Analysis
Judgment vs. Order
The Division Bench’s first task was to determine whether the Single Judge’s ruling is a “Judgment” or an “Order.” This matters because the proviso to Section 13(1-A) restricts appeals against “orders” to those specifically enumerated under Order XLIII CPC and Section 37 of the Arbitration and Conciliation Act, 1996. Relying on the Supreme Court’s decision in MITC Rolling Private Limited v. Renuka Realtors (2025 SCC Online SC 2375), the court held that the proviso operates only on “orders”; the main provision of Section 13(1-A) permits appeals against “judgments” without that restriction. Since the Single Judge’s decision conclusively determined the parties’ rights, it is a “Judgment” for purposes of Section 2(9) CPC, and the proviso posed no obstacle.
Original or Appellate Jurisdiction?
Solanke’s argument that the Single Judge exercised original jurisdiction, and that the proceedings therefore entered the Commercial Division as a first-instance matter, was rejected. The petition reached the Commercial Division through Section 117A of the Patents Act, which is an appellate provision: it confers on a party aggrieved by the Controller’s decision the right to approach the High Court. The court noted that Section 7 of the Commercial Courts Act is not confined to suits and applications, and that Section 12, governing determination of specified value, explicitly contemplates “Suit, Appeal or Application.” The Commercial Division accepted the Section 117A petition in the form in which it arrived, as an appeal, and adjudicated it as such.
Does the Controller Have Trappings of a Civil Court?
This is the analytical core of the judgment, and where the Bombay Division Bench deliberately departs from the Delhi High Court’s position. Section 100A CPC bars any “further” appeal from the judgment of a Single Judge who has decided an appeal arising from an original or appellate decree or order, overriding Letters Patent and any other law. The live question was whether the Controller of Patents, as the original decision-making authority, is the kind of forum whose orders attract that bar.
The Delhi High Court in Promoshirt SM SA v. Armassuisse had held that the Registrar of Trade Marks lacks the trappings of a Civil Court and that Section 100A therefore did not bar a Letters Patent Appeal against a Single Judge’s ruling under Section 91 of the Trade Marks Act, 1999. The Bombay Division Bench declined to follow that reasoning in the context of the Patents Act. It drew a pointed distinction between the Registrar’s functions and those of the Controller of Patents. Under Sections 77, 79, and 80 of the Patents Act, the Controller is armed with powers to summon witnesses, compel document production, receive affidavit evidence, and take oral evidence. Orders as to costs are enforceable as a decree of a Civil Court. These are not incidental powers: the Controller adjudicates a genuine inter partes contest at the pre-grant stage, determining the rival claims of an applicant and an opponent on the basis of evidence. The court held that the Controller’s role in the scheme of the Patents Act is “of much more significance” than that of the Trademark Registrar, and that the Controller plainly has the trappings of a Civil Court.
The Supreme Court’s purposive reading of Section 100A in Mohd. Saud v. Shaik Mahfooz was central to the court’s reasoning: Section 100A was enacted precisely to curtail the proliferation of appeals. To permit a second intra-court appeal in patent matters, after an already substantive first appeal before the Single Judge, would invert that purpose. The court also drew support from Kamal Kumar Dutta v. Ruby General Hospital (where the Company Law Board’s trappings of a court sufficed to attract Section 100A) and from Glorious Investment Limited v. Dunlop International Limited (2025 SCC Online Cal 8647), in which the Calcutta High Court reached the same conclusion in the context of Trade Mark Act appeals.
As for Solanke’s contention that Section 100A is displaced by the Commercial Courts Act’s framework, the court was unpersuaded. Section 16 of the Commercial Courts Act modifies the CPC only in relation to the trial of commercial suits; it does not exclude the CPC for purposes of appeals. Section 100A, therefore, continues to operate with full force, and no exception arises under Section 13(2) of the Commercial Courts Act, which bars appeals not in accordance with the Act’s own provisions.
Findings
In view of the observations and the arguments presented by both the parties, the Bombay High Court (Division Bench) held that:
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- The Single Judge, in deciding the Section 117A petition, exercised appellate jurisdiction; the Commercial Division accepted the proceedings in the form in which they arrived and did not convert them into original proceedings.
- The Single Judge’s final determination constitutes a “Judgment” under Section 2(9) CPC, not merely an “Order,” and is therefore not limited by the proviso to Section 13(1-A) of the Commercial Courts Act, 2015.
- The Controller of Patents and Designs has the “trappings of a Civil Court” by virtue of the extensive powers conferred under Sections 77, 79, and 80 of the Patents Act, 1970, placing it in a materially different position from the Registrar of Trade Marks as analysed in Promoshirt SM SA v. Armassuisse. The Bombay High Court declined to follow the Delhi High Court’s position in that case.
- Section 100A of the CPC operates as an absolute bar to a further intra-court appeal from the judgment of a Single Judge who has decided an appeal arising from the Controller’s orders; the Commercial Courts Act, 2015 does not exclude Section 100A from applying to patent appeals.
- The Commercial Appeal under Section 13 of the Commercial Courts Act, 2015 is not maintainable and was accordingly dismissed.
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Case Citation: Vishal Prafulsingh Solanke & Anr. v. Controller of Patent and Designs & Ors., Commercial Appeal (L) No. 13430 of 2025 (arising from Commercial Miscellaneous Petition No. 110 of 2025), Bombay High Court (Division Bench), decided on 9 March 2026. Neutral citation: 2026:BHC-OS:7027-DB. Available at https://indiankanoon.org/doc/63994794/
Authored by Gaurav Mishra, Patent Attorney, BananaIP Counsels