IMPORTANT POINT
The court established that inventions based on traditional knowledge are not patentable if they do not demonstrate a significant inventive step beyond known properties.

JUDGMENT :

SENTHILKUMAR RAMAMOORTHY, J.

PRAYER: This Civil Miscellaneous Appeal filed under Section 117-A of the Patents Act, 1970, prays (i) that this Court may be pleased to set aside the order dated 12.03.2020, passed by the 2nd Respondent herein in Application No.201721043812 dated 06.12.2017 and consequently prayed to direct to issue patent; and (ii) to pass such further and other order or orders as this Court may be deemed fit and proper in the circumstances of the case and thus render justice.

Background

The appellant filed Patent Application No.201721043812 on 06.12.2017 for the grant of patent for an invention titled 'Eco-friendly lamp made up of composition based on panchagavya with the combination of leaves used in traditional herbal medicine'. The said application was published on 22.06.2018. Based on a request for examination, the First Examination Report (FER) was issued on 29.06.2018. The appellant filed a response thereto on 08.08.2018. A pre-grant opposition was filed by Mr.R.A.Swaminathan on 22.08.2018. The appellant replied thereto on 23.10.2018. By communication dated 22.07.2019, a hearing was fixed on 04.09.2019. While the appellant attended the hearing, the pre-grant opponent failed to attend the hearing. The application was heard and rejected by impugned order dated 11.04.2020 in the above facts and circumstances.

Counsel and their contentions:

2. Oral arguments on behalf of the appellant were submitted by Mr.C.V.Ramachandramurthy and on behalf of the respondents by Mr.A.R.Sakthivel, learned SPC. Both the appellant and the respondents also filed written submissions.

3. Although there was a pre-grant opposition before the patent office, the appellant did not implead the pre-grant opponent as a party to this appeal on the ground that such pre-grant opponent did not participate in proceedings culminating in the impugned order.

4. Learned counsel for the appellant submitted that the claims are in respect of a single-use lamp and the process for producing such lamp. He also pointed out that the product and process satisfies all the requirements of Section 2(1)(j) of the Patents Act, 1970 (the Patents Act). With reference to the prior art documents cited in the impugned order, learned counsel submitted that D1 and D2 deal with mosquito repellents. Consequently, he contended that they are not analogous or relevant prior arts. He further submitted that the ingredients in the claimed invention are not the same as in the cited prior arts. Although 53 ingredients are used in prior art D1, learned counsel submitted that such ingredients are not the same as those used in the claimed invention. As regards prior art D2, he submitted that there is only one common ingredient. With regard to prior art D3, learned counsel submitted that it is non-patent literature published on or about 12.10.2017. Since the patent application was filed on 06.12.2017, which is not later than 12 months from the date of publication of D3, he contended that the claimed invention should not have been rejected by reference to prior art document D3. Learned counsel also submitted that the report of SGS Laboratories was disregarded while issuing the impugned order.

5. As regards rejection with reference to Section 3(p) of the Patents Act, learned counsel submitted that clause (p) applies when the invention is, in effect, traditional knowledge or is an aggregation of known properties of traditionally known compositions. While admitting that cow dung, cow urine, cow ghee, cow butter, cow milk and cow curd are part of traditional knowledge, he pointed out that the manufacturing of a single-use lamp by using these ingredients qualifies as an invention. Therefore, he contended that clause (p) of Section 3 is not applicable. He further submitted that clause (d) only applies for a new form of a known substance. Since the single-use lamp made from cow products and a mixture of leaves selected from neem tree, lemon tree and peepal tree is a new product and not a kn