How many chances do you really get to appeal a rejected patent application? Recent High Court decisions on the maintainability of Letters Patent Appeals suggest that the answer may depend less on law and more on geography. Taking a look at the conflicting High Court rulings on Letters Patent Appeals, Hruthika Addlagatta explains how the conflicting opinions have turned appellate access into a jurisdiction-dependent question, raising serious concerns of equality and fairness. Hruthika is a second-year law student from NALSAR University of Law, Hyderabad.
One Chance or Two? Madras HC Bars LPAs in Patent Disputes, Deepening High Court Parity
By Hruthika Addlagatta
When your patent application is rejected, you of course can appeal it. How many levels of appeal do you have though? Well, it seems it depends on where you first file! Letter Patent Appeals (“LPAs”) allow division benches to review single judge decisions regarding patent appeals in High Courts. The abolition of the Intellectual Property Appellate Board (“IPAB”) in 2021 transferred all IP appeals directly to the High Courts, making LPA maintainability critical. Recent months have witnessed a sharp divergence between High Courts on this issue, first with Delhi and Calcutta High Courts taking opposing views on trademark LPAs. In Italfarmaco SPA v. Deputy Controller of Patents, the Madras High Court has now affirmed the more restrictive approach as seen in the Calcutta High Court in holding that the Commercial Courts Act bars intra-court appeals in patent matters. This post examines how this decision fits within the broader conflict between High Courts on LPA maintainability in IP disputes and its implications for appellate justice. This divergence forces us to confront a troubling constitutional dilemma: does a citizen’s right to a meaningful appeal now depend on a jurisdictional lottery, creating unequal justice under Article 14 and an inaccessible system the Supreme Court itself has warned against?
The Madras High Court Patent Decision
Italian pharmaceutical company Italfarmaco challenged the rejection of its patent application by the Deputy Controller under Section 15 of the Patents Act, 1970. After a statutory appeal against the order of the Patent Office, under Section 117A, before a single judge bench of the Madras High Court was dismissed, Italfarmaco attempted to file an intra-court appeal before the Commercial Appellate Division, but the HC Registry raised a maintainability objection. The Registry questioned whether an LPA could lie against a single judge order in a statutory patent appeal, given the restrictions under the Commercial Courts Act which states in Section 13(2): ‘notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.’
The Division Bench of the Madras High Court held that Section 13 of the Commercial Courts Act, 2015, is a special enactment that prevails over the Letters Patent. The Court noted that Section 13(1A) permits appeals only from orders specifically enumerated under Order XLIII of the Code of Civil Procedure (specific interlocutory orders such as orders of injunction or appointment of receivers) or Section 37 of the Arbitration Act (which covers appeals against arbitral tribunal orders on jurisdiction and interim measures). Since Section 117A patent appeals do not fall within these categories, no further intra-court appeal lies.
The Trademark Controversy: Delhi v Calcutta
Presently, High Courts do not have a consensus on whether Letters Patent Appeal lies against a single-judge decision in trademark registry appeals under Section 91 of the Trade Marks Act. While the Delhi High Court permits such intra-court appeals, treating the single judge as exercising original jurisdiction, the Calcutta High Court has rejected them as impermissible second appeals.
To further illustrate, in Promoshirt SM SA v. Armassuisse (September 2023), the Delhi High Court held that LPAs are maintainable against single-judge bench orders in trademark appeals under Section 91 of the Trade Marks Act, 1999. The Court reasoned that Section 100A of the CPC, which bars second appeals, applies only when the first appeal arose from a ‘civil court.’ The Registrar of Trademarks, despite having court-like powers, is not a civil court. The Delhi HC observed that, unlike earlier trademark legislation, Section 91 of the 1999 Act makes no reference to CPC provisions. Therefore, Letters Patent powers under Sections 4 and 104 of the CPC remain operative.
Two years later, in Glorious Investment Limited v. Dunlop International Limited (November 2025), the Calcutta High Court took the opposite view, holding that LPAs are not maintainable against Section 91 trademark appeals. The Court held that the Registrar possesses ‘all the trappings of a court’ based on powers under Section 127 of the Trade Marks Act. Applying Supreme Court precedents from Bharat Bank v. Employees of Bharat Bank and Kamal Kumar Dutta, the Court concluded the Registrar functions as a quasi-judicial civil court, making any further appeal a ‘second appeal’ barred by Section 100A CPC.
The fundamental divide lies in how each High Court interprets whether the IP Registrar constitutes a ‘civil court’ for Section 100A purposes. Delhi draws a strict distinction: the Registrar operates under a special statute outside the CPC’s civil court framework. Calcutta applies a functional test, treating authorities exercising judicial powers as civil courts for appellate purposes. The courts also disagree on legislative silence. Delhi interprets the absence of CPC incorporation as intentional non-application of Section 100A, supported by the Supreme Court’s 1953 National Sewing Thread precedent. Calcutta counters that the deliberate omission of intra-court appeal provisions signals legislative intent to restrict appeals. The divergence reflects different policy priorities: Delhi emphasizes access to justice, while Calcutta prioritises finality and judicial efficiency. (Interested readers can look at detailed discussions by Tejaswini Kaushal and Mohamed Thahir Sulaiman.)
Madras HC Decision in Context: Implications and the Path Forward
The Madras patent decision introduces an additional complexity: the Commercial Courts Act, 2015. Patent disputes fall within ‘commercial disputes’ under Section 2(1)(c)(xvii), which specifically overrides Letters Patent through its non-obstante clause in Section 13(2). Unlike trademark rectification matters, under Section 57 of the Trade Marks Act, which are original proceedings filed directly before the High Court where it exercises original jurisdiction, patent appeals under Section 117A are statutory appeals from administrative decisions where the High Court’s role is purely appellate.
The Madras Court’s reasoning parallels Calcutta’s restrictive approach, emphasizing that special statutes provide complete appeal mechanisms. The Court noted: “Any expansion of the scope of the Commercial Courts Act will defeat its objectives and there is no ambiguity regarding appeals.”
The jurisdictional lottery creates perverse incentives. An applicant filing before the Delhi Patent Office gets a potential two-tier review, while an applicant before the Chennai Patent Office faces a single-chance determination. In jurisdictions barring LPAs, the only remedy is a Special Leave Petition to the Supreme Court under Article 136, contradicting the Supreme Court’s own warning in L. Chandra Kumar that direct tribunal-to-Supreme Court appeals create an ‘inaccessible’ justice system.
This divergence raises constitutional questions about the uniformity of fundamental procedural rights. Article 14‘s equality guarantee is implicated when citizens receive different appeal rights based solely on geographic happenstance. The Supreme Court’s 1953 National Sewing Thread precedent was set before the 2002 introduction of Section 100A CPC, before the IPAB’s 2021 abolition, and before the 2015 Commercial Courts Act. The transformed legislative landscape warrants fresh Supreme Court guidance.
With three major High Courts taking divergent positions within three years (Delhi 2023, Calcutta 2025, Madras 2025), the issue has moved from theoretical to practically urgent. Every IP appeal now faces preliminary maintainability battles, wasting judicial resources. Parliament could amend the Patents Act, Trade Marks Act, and Commercial Courts Act to explicitly address LPA maintainability. The Trade Marks Act 1940 and 1958 contained such explicit provisions; their removal in 1999 created the current ambiguity.
The current state of LPA law in IP disputes is untenable. IP rights holders cannot plan litigation strategies when basic appellate procedures vary by jurisdiction. The Madras High Court’s patent decision has extended the trademark controversy into a new domain, making Supreme Court intervention virtually inevitable. As India seeks to strengthen its IP regime and attract innovation investment, procedural uncertainty undermines these goals. The Supreme Court must harmonise these conflicting interpretations to restore predictability and ensure equal access to appellate justice across India’s IP system. Until then, IP applicants remain subject to a jurisdictional lottery determining whether their dispute merits one judicial review or two.
