PRABHA SRIDEVAN - (1.) THIS appeal has been filed against order dated 27/01/2009 (Application No. 3498/DELNP/2005) by the appellant herein. The invention relates to "The use of Lupin Conglutin for the treatment of Type II Diabetes". The priority date of the application is 11/02/2003 and the PCT application dated 06/02/2004. The Deputy Controller refused grant of patent, against which this appeal has been filed.
(2.) THE Learned Counsel for the appellant submitted that the impugned order suffers from several infirmities. The examiner had not gone beyond ISR and IPER and the Controller had restricted himself to the ISR and not looked at the IPER. The Learned Counsel submitted that Rule 23 of the Patent Rules provide that the requirements in Chapter 3 of the Patent Rules are supplementary to the PCT and the regulation and the administration instructions made there under. This was over looked by the Controller. The Learned Counsel submitted that the order seems to indicate that with regard to the objection under section 3(e) no data was provided regarding novelty and inventive step. The Learned Counsel submitted that section 3(e) has nothing to do with the inventive step or novelty and the Controller's approach was wrong. The Learned Counsel submitted that reading of para 3 and 5 of the impugned order will show that it has to be set aside. The Learned Counsel submitted that when the only active ingredient was lupin conglutin gamma it was not necessary for the inventor to add any other excipient.
(3.) WE called for the records and we also considered the submissions made by the Learned Counsel for the appellants. On receipt of request for examination, the respondents First Examination Report was sent and it is dated 31/12/2007. It contains several objections including lack of clarity, insufficiency of definition, inconsistency between title, description and place, absence of novelty, section 3(e) objection etc. It was re -submitted deleting the initial claim 1 to 7 and re -wording claim 6. The claims as amended according to the Learned Counsel for the appellant are contained in Annexure C' and reads as follows: - (1) The pharmaceutical compositions comprising from 150 to 750 mg of lupin conglutin gamma or a lupin protein mixture or extract containing lupin conglutin gamma. (2) The composition as claimed in claim 1, the said lupin conglutin gamma is used as hypoglycemizing agent. (3) The pharmaceutical composition substantially as herein described with reference to the foregoing description, examples and the drawings.;