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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
HON'BLE SHRI JUSTICE MANISH PITALE
Chitra Vasant Savangikar – Appellant
Versus
Patent Office of India through Controller General of Patents, Designs and Trade Mark – Respondent
JUDGMENT :
MANISH PITALE, J.
1. Heard learned counsel for the parties.
2. By this petition, the petitioners have challenged decision / order dated 08.09.2021 passed by respondent No.2 - Controller of Patents. By the said decision, the respondent No.2 has refused to proceed further with a divisional application moved on behalf of the petitioners under the provisions of the Patents Act, 1970 (hereinafter referred to as the ‘Patents Act’).
3. In the present case, the petitioners filed their application for grant of patent on 23.06.2017 in respect of a Chlorophyllin composition concerning treatment of kidney disease patients for decrease in serum creatinine level and a corresponding increase in hemoglobin level. The said application was in active consideration and during this period, on 12.05.2020, the petitioners filed divisional application for Chlorophyllin composition, according to the petitioners, without restricting the same to any specific use and also without limiting the same for treatment of kidney disease patients. The respondent No.2 issued the First Examination Report (FER) granting last date for response to the same as 06.07.2021. The petitioners filed their reply to the FER
A divisional application under the Patents Act requires the existence of more than one invention in the parent application; failure to demonstrate plurality results in denial.
A divisional patent application must be filed before the grant of a parent application; filing post-grant is impermissible under Section 16(1) of the Patents Act.
A divisional patent application can be filed unilaterally by the applicant, provided it relates to more than one invention, and the Controller must assess this requirement.
The requirement of 'plurality of inventions' should be tested based upon the disclosure made in either the provisional or complete specifications.
The main legal point established in the judgment is that a divisional patent application must be distinct from the parent application, and the reasons for rejection of a patent application should be ....
The court emphasized the importance of the Controller applying its mind to the facts and materials before it and deemed it appropriate to assume jurisdiction due to the non-application of mind by the....
The discretion to allow additional written statements under Order VIII Rule 9 CPC is broad, particularly when trial has not commenced, aimed at advancing justice.
An interlocutory injunction can be granted if infringement is established, and no credible challenge to patent validity is presented, even when prior publications and claims are involved.
Point of Law : Intellectual Property Law - Revocation of patents - Appropriateness of Bioavailability and Bioequivalency as Pre- Market Clearance Considerations” by Jane Moffitt, which opined that “a....
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