Asok Kumar Ganguly, J. - (1.) This statutory appeal under Section 116 of the Patent Act, 1970 (hereinafter to as P.A.) was filed against the decision dated 27th December, 1999 passed by the Assistant Controller of Patents and Designs under Section 15 of P. A. By the said impugned decision dated 27th December, 1999, the Assistant Controller of Patents and Designs exercising the delegated authority from the Controller under Section 73(3) of P. A. refused to accept the patent application filed by the appellant and upheld the objection of the Examiner.
(2.) The material facts of the case are that the said Patent application filed by the appellant involved, according to the appellant, an invention relating to a process for preparation of infectious Bursitis Vaccine. The said Patent application was examined by the Patent Office Examiner under Section 12 of P.A. On such official examination, the Examiner gave a finding that what is claimed in the said Patent application does not constitute an invention under Section 2(i)(j) of PA. The said Examiner further sated that the invention is one of the classes as specified in Section 5(a)/5(b) of P.A. as the substance prepared by the process is capable of being used as Food/Drug. However. the said examination report shows that the application of the appellant was rejected, inter alia, on the finding that the same does not constitute an invention under Section 2(i)(j) of P.A. as noted above. In the said impugned decision under appeal, the authority concerned also proceeded on that decision of the examiner.
(3.) From the impugned order/decision under appeal, it appears that the Assistant Controller of Patents & Designs noted the contentions of the appellant that the invention relates to the process for preparation of infectious Buristis Vaccine (hereinafter referred to as the said Vaccine) which is invented for protecting poultry against infectious bursitis. It was the contention of the appellant before the Assistant Controller of Patents & Designs that under the present state of law in India, there is no bar against allowing the process for preparation of any product which is a patented commodity even if the process contains live virus. It was also the contention of the appellant that the objection under Section 2(i)(j) of P.A. put forward by the Examiner is not based on any reason. It has also been contended that there is no bar under the present pi state of law against granting patent to an end-product, the manufacture or which involves the live virus and the grant of patent cannot be denied on the basis of any administrative policies. It was further stated that the administrative policies cannot be allowed to prevail over the statutory definition under the act as that will be a negation of a rule of law inasmuch as no administrative policy can override the statutory provision. In dealing with the said contention, the Assistant Controller of Patents & Designs held that the process for preparation of the said vaccine which has living entity cannot be considered a manufacture. It was held that in past the same was never patented in India. The Assistant Controller of Patents & Designs was of the opinion that if the term 'manufacture' is to be given such a wide meaning, there will be further problems as ever going new process with foreign sophisticated technologies will have to be patented in India. The Assistant Controller of Patents & Designs, therefore, wanted to probe the' intention of the Legislature in ascertaining the term 'Manufacture' and, as such, relied on the recommendation of Justice Rajagopalan lyenger on the earlier Patent Bill 1953 and yeld that the said recommendation of Justice Rajagopalan lyenger was accepted by the framers of the present law. The Assistant Controller further held that the definition of 'Invention' under Section 2(i)(j) of P.A. is substantially identical with the definition as recommended by Justice Rajagopalan lyenger as published in 3rd paragraph of page 130 of the report of the Patent Enquiry Committee. The Assistant Controller of Patents & Designs further held that the original definition of manufacture as provided in clause (j) of Section 2 of the Patent Bill, 1953 was not accepted in view of the recommendation of Justice lyenger. The Assistant Controller of Patents and Designs was, therefore, also not in favour of accepting the wider meaning to the term manufacture. Therefore, the finding was reached by the said Assistant Controller of Patents and Designs that the process of preparing vaccine which contains the living virus cannot be considered manufacture.;