The seriousness of patent applications and the need for thorough examination and consideration of objections and responses.

JUDGMENT :

C.A.(COMM.IPD-PAT) 10/2022

1. This appeal under Section 117A of the Patents Act, 1970 impugned order dated 29th January 2021 passed by the learned Assistant Controller of Patents and Designs, whereby Application No. 201911010599 dated 19th March 2019, filed by the appellant for registration of a patent claiming a “device and process for obtaining individualised tactile feedback replicating breath hold of patient” was rejected by the learned Assistant Controller.

2. Mr. Gaurav Barathi, learned Counsel for the appellant submits that the impugned order is unreasoned.

3. Consequent to the filing of the aforesaid application by the appellant, First Examination Report (FER) dated 10th February 2020 was issued by the Controller of Patents in which it was alleged that the patent, for which the appellant had applied, lacked inventive step within the meaning of Section 2(1) (ja) ((ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;) of the Patents Act, as the claims in the patent were obvious from prior art. Two documents, D 1 and D 2 were cited as prior art by the Controller of Patents. The objection as contained in the FER may be reproduced thus:

“1. The document D1 discloses a device which is Installed on the upper treatment table 5 of the radiation devices in radiation surgery the position verifying apparatus for verifying the position of the patient on said treatment table 5, the treatment table 5 is installed to be secured to the upper side and the well connected to a pair of upper ends of the side plate 20 and the, side plates 20, the pair being a predetermined interval apart in a patient either side of the box as well as the upper side of the patient configured as a fixed top plate 30 are spaced intervals frame 10; is installed on the frame (10), radiation surgery, the patient position verifying apparatus characterized in that comprises a distance measuring means 40 to measure the distance between the frame 10 and the patient. Further; D1 also discloses a method of recording a patient's position at the time of the step treatment plan, first, there is thereby secured to the frame (10) on the upper side the treatment table 5 the patient is lying, that here the frame 10 to the pelvic side of the patient it is preferable to position at a position. Then, each recording the distance measured by each of the distance measuring bars 45 to measure the distance between the frame 10 and the patient to the plurality of distance measuring bar (45). At this time, the convenience without an error when recording the measured distance to each distance measuring bar 45, when a serial number to the through hole 41 of each of the distance measuring bar 45 and the frame 10 Do. Of course, the position coordinates are recorded along the meshing contact point is displayed in terms of the scale and the treatment table 5 is shown the lower end of the frame (Whole Document).

2. The document D2 discloses In block 210, an optional breath hold can be requested from the patient. At block 212, acquisition of a new image (eg, 3DUS) is triggered. This occurs when the success parameter is appropriate. At block 214, the newly acquired image (eg, 3DUS) is registered on the baseline image. The operator then obtains a breath hold from the patient, acquires a live 3DUS of the tumor in the current view, and triggers motion compensation using the acquired 3DUS. At block 216, the registration result obtained at block 214 is employed to update the registration with the previous US image. The system performs motion compensation by aligning the live 3DUS with the baseline 3DUS and using the registration results to update the fused image. At block 218, the quality of the fusion is determined. If the quality is good, the path ends and the operator can then use the updated fusion image to vis