PHARMACIA AND UPJOHN COMPANY Vs. UNION OF INDIA, THROUGH THE SECRETARY, DEPARTMENT OF INDUSTRY

JUDGEMENT

(1.) THE appellant applied for grant of patent to the invention titled "A Composition Comprising One to Three Bioactive Agents and a Vehicle Comprising a Modified and Unmodified Liquid Carrier".

(2.) ACCORDING to the appellant at the time of invention, the state of the art did not know a pharmaceutical composition that provided sustained -release delivery of bioactive substance wherein the release performance is predictable and reproducible immediately after manufacture of the product and when the appellant surprisingly found that they had a composition which achieved just that and therefore they applied for patent application No.1466/DELNP/2005 on 12.4.2005. The appellant is aggrieved that by the impugned order, wherein the Assistant Controller of Patents & Designs found that the invention was obvious and did not deserve the grant.

(3.) THE facts preceding the rejection are as follows: The appellant made a request on 7.10.2005 for examination of the patent. The First Examination Report was dated 27/11/2006, the objection was that the claims 1 -15 do not involve an inventive step in view of citation D1 (International Publication No.WO 02/22107 A), D2 (United States Patent Publication No.2002/068065), D3 (United States Patent No.6074657), D4 (United States Patent No.5736151), and D5 (International Publication No.WO 9420505 A) mentioned in the IPER. According to the objections, the claim fell within the scope of Section 3(e) of the Act, the claims were not clear, they did not sufficiently define the invention. The appellant responded to it by the letter dated 2, February, 2007. In this reply they stated that sustained release of the drug is the key feature of the invention and in D1 there was no specific teaching towards using a modified liquid carrier in a very low proportion and as regards D2 too the appellant gave the same reply. As regards D3 to D5, the appellant stated that there was no teaching of the composition of the present invention. They requested that all the objections be withdrawn and also for an opportunity to be officially heard before any adverse decision was taken.