OA/37/2013/PT/DEL. Case: Council of Scientific and Industrial Research Vs Hindustan Lever Limited and Ors.. Intellectual Propery Appellate Board Cases

Case NumberOA/37/2013/PT/DEL
Party NameCouncil of Scientific and Industrial Research Vs Hindustan Lever Limited and Ors.
CounselFor Appellant: Sanjeev Tiwari and Valini Panda
JudgesK.N. Basha, J. (Chairman) and D.P.S. Parmar, Member (T)
IssueAtomic Energy Act, 1962 - Section 20; Patents Act, 1970 - Sections 2, 2(1), 2(1) (ac), 2(1)(j), 2(ja), 25(1), 25(1)(e), 4, 8
Judgement DateJuly 03, 2015
CourtIntellectual Propery Appellate Board Cases

Order:

K.N. Basha, J. (Chairman) and D.P.S. Parmar, Member (T)

  1. The challenge in this appeal is to the order dated 20.06.2013 passed by the Assistant Controller of Patents and Designs, Patent Office, New Delhi refusing the grant of Patent to the appellant on the pre-grant opposition filed by the first respondent herein in Application No. 1219/DEL/2004.

  2. Mr. Sanjeev Tiwari and Ms. Valini Panda, the learned counsel appearing for the appellant herein are present. The first respondent neither appeared in person nor through any advocate. However, the first respondent known as "Hindustan Lever Limited" has sent two communications dated 14.02.2014 and 09.03.2015 to the Dy. Registrar, Intellectual Property Appellate Board, Chennai. It is relevant to incorporate the two communications as hereunder. The letter dated 14.02.2014 addressed to the Registry reads hereunder:

    Dear Sir,

    Ref: BEFORE THE INTELLECTUAL PROPERTY APPELLATE BOARD

    Original Appeal No. OA/37/2013/PT/DEL arising out of the order dated June 20, 2013 passed by Assistant Controller of Patents in the matter of Patent Application No. 1219/DEL/2004 Council for Scientific and Industrial Research... Appellant Vs. Hindustan Lever Ltd. and another... Respondents

    With reference to the subject appeal arising from the order of the Learned Assistant Controller of Patents and Designs, Patent and Designs dated June 20th, 2013 in connection with Pre-grant Opposition proceedings to application No. 1219/DEL/2004, we the respondent No. 1 herein, submit that we had opposed the subject application being interested in the subject matter of invention at the relevant time. However, due to the change in our business priorities, we cease to have any commercial interest in the subject invention of the Appellant and are no more interested in pursuing the opposition to the same. Under the circumstances we do not intend to contest the present appeal as well.

    You are therefore to dispose of the appeal on merits considering the fact that a bad patent should not be allowed to be granted when the invention is unmeritorious as that would be contrary to law and public interest.

    Yours faithfully,
    HINDUSTAN UNILEVER LIMITED
    Sd.
    (S. Venkatramani)
    Head of Patent Group, India

    Another letter dated 09.03.2015 reads hereunder:

    "Dear Sir,

    Ref: BEFORE THE INTELLECTUAL PROPERTY APPELLATE BOARD

    Original Appeal No. OA/37/2013/PT/DEL arising out of the order dated June, 20, 2013 passed by Assistant Controller of Patents in the matter of Patent Application No. 1219/DEL/2004 Council for Scientific and Industrial Research... Appellant Vs. Hindustan Lever Ltd. and another... Respondents

    We write to you in response to your hearing notice dated February 17, 2015 in respect of the subject case, received by us on March 4, 2015.

    In this context we would like to bring into your kind notice, our letter dated February 14, 2014 wherein we have categorically stated that we (the respondent No. 1 herein the subject appeal) are no more interested in pursuing the opposition to the patent application from which the subject appeal has arisen and had accordingly requested the Ld. Board to dispose of the appeal on merits considering the fact that a bad patent should not be allowed to be granted. Enclosed is the copy or our letter dated February 14, 2014 for your ready reference.

    Under the circumstances you are requested to dispose of the appeal on merits as requested.

    Yours faithfully,
    For HINDUSTAN UNILIVER LTD.
    Sd.
    (S. Venkatramani)
    Head of Patent Group, India"

  3. The respondent having clearly stated in the above said communications that they ceased to have any commercial interest in the subject invention of the appellant and are no more interested in pursuing opposition to the same and as such we have to consider the matter on merits.

    The claim of the appellant viz. Patent Applicant

  4. The appellant claimed that their invention is titled as "Iodizing Agent and process for preparation thereof". The invention relates to a method for the preparation of stable iodizing agent. The present invention also relates to a novel process for the preparation iodizing agent from Pharma grade hydrotalcite and water soluble alkali iodate by intercalating iodate anion in the interlayer space. The iodizing agent so prepared is stable and can be effectively used in the formulation of iodized salt, wherein it offers stability to iodine. The appellant submitted their Patent Application No. 1219/DEL/2004 dated 30.06.2004 which was published on 23.06.2006.

  5. Initially, the Patent Application had 11 claims. The pre-grant opposition was filed by the first respondent on 21.12.2006.

    The grounds of opposition were (1) The invention is anticipated by the prior publications: (a) South African Patent No. ZA 2000/4598 granted and published on 29th May, 2002 and the corresponding Indian Application No. 616/BOM/99 filed on 6th September, 1999 and deemed published on 28th May, 2003 or thereabout, (b) US Re 34164 published on 19th January, 1993, (c) US Publication No US 2004/0126301 published on 1st July, 2004 and (d) "Vibrational Modes in layered double hydroxides and their calcined derivatives" in Chemical Physics 236 (1998) 225-234; (ii) the invention is claimed in a claim of a complete specification published on or after the priority date of the applicant's claim; (iii) the invention was publicly known or publicly used in India before the priority date of the claims; (iv) the invention as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step; (v) the subject matter is not an invention within the meaning of the act or is not patentable under the act; (vi) the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed; (vii) the applicant has failed to disclose to the Controller the information required by section 8 or has furnished the false information.

    The appellant gave a reply to pre-grant opposition on 27.08.2010

  6. On receipt of first examination report dated 24.5.2011 the...

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