A claimed invention must demonstrate inventive step and technical advancement; combinations deemed obvious must avoid hindsight bias, treating knowledge available at the priority date effectively.

JUDGMENT :

(Senthilkumar Ramamoorthy, J.)

(Prayer: This Civil Miscellaneous Appeal is filed under Section 117-A of the PATENTS ACT , 1970, to set aside the order dated 11 November 2016 issued by the Respondent and direct that the Patent Application No.6334/CHENP/2009 proceed to grant.)

Background

The appellant assails an order dated 11.11.2016 by which Indian Patent Application No.6334/CHENP/2009, which is the national phase application derived from PCT Application No.PCT/EP08/55018, was rejected.

2. The appellant filed the above mentioned application dated 26.10.2009 for grant of patent in respect of an invention titled “Polyamide Material Having High Fluid Barrier Properties” by claiming its priority date from French Application No.0703069 dated 27.04.2007. The claimed invention relates to polyamide materials having high barrier properties to fluids, i.e. gases and liquids. Fifteen original claims were set out in the complete specification. Upon examining the complete specification, the First Examination Report (FER) was issued on 22.07.2014. In the FER, the respondent inter alia raised the following objections: that the invention is not novel and lacks inventive step by citing prior art documents D1 and D2; and that the invention falls within the scope of Section 3(e) of the PATENTS ACT , 1970 (the PATENTS ACT ).

3. The appellant responded thereto on 20.07.2015 and submitted amended claims 1 to 6. It contended that the claimed invention is distinguishable from D1 and D2 by stating that both D1 and D2 disclose polyolefin compositions which comprise polyamide as a minor component. In the hearing notice dated 05.07.2016, the respondent raised objections on the ground of lack of novelty and inventive step by citing prior art documents D4 to D6. Pursuant to a hearing, along with the written submissions, the appellant further amended claims 1 to 6 and asserted that the claimed invention is distinguishable and not obvious from prior arts D4 to D6. The amended claims, as of 18.10.2016, are set out below:

“WE CLAIM:

1. A polyamide composition having high fluid barrier properties comprising a mixture of:

a) a polyamide matrix present in an amount from 60% to 80% by weight, relative to the total weight of the composition;

b) from 5 to 20% by weight of a novolac resin;

c) from 5 to 30% by weight, relative to the total weight of the composition, of a polyolefin devoid of functional groups useful for improving its compatibility with the polyamide, said polyolefin c) being a polyethylene having a density ranging from 0.94 to 0.97 g/cm³, wherein said polyolefin c) does not comprise a maleic anhydride group, a salified or unsalified carboxylic acid group, an ester group, an acrylic group, a methacrylic group, or an epoxy group; and

d) an agent for effecting compatibilization between the polyolefin and the polyamide, said compatibilizing agent d) being a compound comprising the polyolefin of c) modified by functional groups selected from the group consisting of a maleic anhydride group, a carboxylic acid group, an ester group, an acrylic group, a methacrylic group, and an epoxy group, said agent being present in an amount of at least 30% relative to the weight of polyolefin c), wherein the polyamide composition when formed into a pipe having a thickness of 1 mm has a permeability to gasoline of no more than 0.8 g/(m²day) at 40° C, the gasoline comprising 45 volume percent toluene, 45 volume percent isooctane and 10 volume percent ethanol.

2. A method for increasing the impermeability to fluids of a polyamide matrix; said method comprising addition to said polyamide matrix present in an amount from 60% to 80% by weight, relative to the total weight of the composition the following ingr