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2019 Supreme(Mad) 1519
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
M/s.La Renon Health Care Pvt. Ltd. - Petitioner
Versus
Union of India, Ministry of Commerce and Industry & Ors. - Respondents
W.P. No. 1219 of 2014 and M.P. No. 1 of 2014
Decided On : 10-01-2019
For the Petitioner: Mr. G.K. Muthukumarm Assisted by Mr. A. Ram Kumar & Preethika Ravichandrabaabu for M/s.GMs Law Associates.
For the Respondents: Mr. K. Srinivasamoorthy, SPCCG, Mr. T.V. Krishnamachari, Mr. Vineet Subramani.
Headnote:
Parent Act, 1970 - Section 64 - Constitution of India - Article 226 - Revoke/cancel the registered Indian - Application for revocation of impugned Patent - Claiming priority from US Patent Application - Composition of claim wherein carbohydrate ingredient is dextrose sucrose, fructose, lactose, maltose galaxies, sugar alcohols, such as invert sugar syrups brown sugar, corn syrup, corn syrup solids, honey, molasses brown sugar, maple syrup fruit juices an artificial sweetener - Composition of claim 5 wherein the fat ingredient is olive oil, canola oil, palm oil, coconut oil, sunflower oil, peanut oil, vegetable oil, lecithin, fish oil, cotton seed oil, soybean oil lard triglycerides butter, margarine and other animal vegetable and marine fats or milk fats – Held, Manner in which rectification application by fourth respondent came to be filed also shows that there was no precision in the application for revocation - Further ground relating obviousness was raised not in the pleading before the third respondent Appellate Board - It was made for first time at time of hearing before third respondent Appellate Board - As the petitioner has not made of case before the 3rd respondent Appellate Board for revocation of the patent, we see no reason why request of petitioner at this stage should be entertained to remand case to give it third opportunity to establish case – Further elaborate submissions were made on technical aspects relating to the invention on behalf of the either parties herein - It is not for us to decipher specification and claims in impugned patent to arrive at a different conclusion based on submissions advanced by the Petitioner. We cannot substitute finding of facts arrived by respondent Appellate Board - Court are however of view that scope of review in a writ jurisdiction being limited we cannot substitute the finding of respondent Appellate Tribunal based on those submission - Court are not exercising Appellate Courts Jurisdiction under Article 226 of Constitution of India - On other hand Court have to examine impugned order from perspective of a Court exercising supervisory jurisdiction under Article 226 of Constitution of India scope of writ petition against an order of third respondent Appellate Board is limited - Court can only examine whether there was any infirmity in procedure adopted by third respondent Appellate Tribunal while passing impugned order - Court do not find any infirmity in procedure adopted by third respondent Appellate Tribunal while passing impugned order – petition dismissed
ORDER :
Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a writ of certiorarified mandamus, calling for the records pertaining to the order No.262 of 2013 of the 3rd respondent herein dated 13.11.2013 made in ORA No.29/2011/PT/MUM/ & M.P.No.90 of 2012 & 130/2012 in ORA No.29/2011/PT/MUM on the file of the 3rd respondent herein and to quash the same and to consequentially direct the 2nd respondent herein to revoke/cancel the registered Indian Patent No.224100 for the invention titled, “Compositions for Augmenting Kidney Function”, granted by the 2nd respondent herein to the 4th respondent herein and to make suitable changes/entries in the register of patents maintained by the 2nd respondent herein.
By the impugned order No. 262/2013 dated 13.11.2013 bearing reference No. ORA/29/2011/PT/MUM, the 3rd respondent Intellectual Properties Appellate Board (IPAB) has dismissed the Application for revocation of impugned Patent No.224100 dated 23.08.2006 of the 4th respondent.
2. The impugned patent was granted to the 4th respondent by the 2nd respondent based on PCT application filed by the 4th respondent claiming priority from US Patent Application No.10.672,622 filed on 30.09.2003.
3. Following claims are covered by the impugned patent :-
1. A composition for augmenting kidney function in a subject comprising at least one probiotic bacterium wherein said probiotic bacterium selected from Streptococcus thermpphilus at about 5 billion to about 20 billion colony forming units of said atleast one probiotic bacterium other ingredient being selected from vitamin, mineral, carbohydrate, protein and fats.
2. The composition of claim 1, wherein the Streptococcus thermophilus is strain KB4, KB19, or KB25.
3. The composition of claim 1, further comprising atleast one vitamin competent and atleast one mineral component.
4. The composition of claim 1, further comprising an enteric coating.
5. The composition of claim 1, wherein said composition is a nutritional food or nutritional food product further comprising atleast one carbohydrate, atleast one fat ingredient, and atleast one protein ingredient.
6. The composition of claim5, wherein the carbohydrate ingredient is dextrose, sucrose, fructose, lactose, maltose, galactose, sugar alcohols, such as sorbitol, mannitol and xylitol, invert sugar syrups, brown sugar, corn syrup, corn syrup solids, honey, molasses, brown sugar, maple syrup, fruit juices, stevia, or an artificial sweetener.
7. The composition of claim 5, wherein the fat ingredient is olive oil, canola oil, palm oil, coconut oil, sunflower oil, peanut oil, vegetable oil, lecithin, fish oil, cotton seed oil, soybean oil, lard, monoglycerides, diglycerides, butter, margarine and other animal, vegetable and marine fats, or milk fats.
8. The composition of claim 5, wherein the protein ingredient is cereal proteins, milk, proteins, egg proteins, animal proteins, vegetable proteins, whey protein, bean proteins, lactalbumin-casein co-precipitate, calcium caseinate, sodium caseinate, purified or refined grades of casein and soy proteins, or peanuts.
9. The composition of claim 5, further comprising atleast one vitamin component, atleast one mineral component, and atleast one probiotic.
10. The composition of claim 9, wherein the probiotic ingredient is a fructo-oligosaccharide, a galaco-oligaosaccharide, a soy-oligosaccharide, a xyio-oligosaccharide, a galacto-oligosaccharide, a soy-oligosacchardie, a xylo-oligosaccharide, an isomalto-oligosaccharides, jerusalem artichoke flour, rolled oats, banana fiber, a pectin and pectic polysaccharide, a mannan, a pentosan, a beta-glucan, a rabinan or a galactan.
4. In the specification it is stated that in normal, healthy humans, metabolic waste nitrogen is primarily excreted via the kidneys as urea, uric acid creatinine, etc., in the urine. However, in individuals with kidney disease, as well as a number of other diseases such as inborn errors in urea cycle enzyme deficit, waste nitrogen
