Madras High Court
Krishnamachari Ramu vs Srinivasa Raja on 14 June, 2018
Author: R. Subbiah
Bench: R. Subbiah, P.D. Audikesavalu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.03.2018
Pronounced on : 14-06-2018
CORAM:
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
Writ Petition Nos. 29318 and 29329 of 2011
and
M.P. Nos. 1 and 1 of 2011
---
1. Krishnamachari Ramu .. Petitioners in both the
2. Ms. Lavanya R Writ Petitions
Versus
1. Srinivasa Raja
Partner
Adyar Ananda Bhavan
Muthulakshmi Bhavan
9, M.G. Road, Shastri Nagar
Adyar, Chennai 600 020
2. Controller of Patents
Patents Office, Chennai Branch
Intellectual Property Rights Building
G.S.T. Road, Guindy
Chennai 600 032
3. Intellectual Property Appellate Board
Guna Complex
II Floor, Anna Salai .. Respondents in both
Teynampet, Chennai 600 018 the Writ Petitions
Writ Petitions filed under Article 226 of The Constitution of India praying for issuing a Writ of Certiorari to call for the records passed in ORA/3/2010/ PT/CH dated 24.11.2011 by the third respondent, quash the same.
For Petitioner : Mr. Satish Parasaran, Senior Advocate
for Mr. Harishankar Mani
in both the Writ Petitions
For Respondents : Mr. P.S. Raman, Senior Advocate
for M/s. A.P.R. Associates for R1
in both the Writ Petitions
No appearance for RR2 to 3
in both the Writ Petitions
COMMON ORDER
R. Subbiah, J These writ petitions have been filed by the petitioners questioning the validity and or correctness of the order dated 24.11.2011 passed by the third respondent, by which the third respondent revoked the patents granted in favour of the petitioners on 01.05.2006 under No. 193899 and 200285 in respect of the process for preparation of low glycemic sweets and product patent for low glycemic sweets respectively.
2. The petitioners have filed an application seeking patent before the second respondent in relation to 'process for preparation of low glycemic sweets' using a natural sweetener Fructose, also known as Levulose. According to the petitioners, the sweets made using Levulose are meant for consumers with diabetes and diabetic tendencies and that it will maintain the same textural and visual properties as sweets prepared using sugar cane. It is the case of the petitioners that in normal circumstances, Levulose, when used at high temperature, results in a brown mass due to Maiilard reaction/Caramelisation Maiilard reaction which occurs between protein element of the sweet-meat and the carbohydrate of the fructose when they are cooked at high temperatures, as required for preparing traditional Indian sweets. According to the petitioners, the formation of the brown mass is dangerous to health and is prone to cancer, kidney related problems. It is the contention of the petitioners that Caramelisation occurs when Fructose/ Levulose is heated and there is no protein carbohydrates interaction. This is because Fructose/Levulose reduces sugar and browns on heating. Thus, syrups which are made for traditional Indian sweets like Rasagula and Gulab Jamun turns brown when Levulose is heated with water, even though no protein element is added due to caramelisation. When levulose is used at high temperatures along with protein element of sweetmeat, both Caramelisation and Mallard Reaction occur together. This invention made by the petitioners addresses the needs of not only people with diabetic, but also children with juvenile diabetic. The petitioners claim that such invention made by them is the first in the World to use Levulose in powder, Crystalline or syrup form to manufacture traditional sweets. Further, under the traditional methods of preparing Indian sweets, the protein in the sweet-meat mass, the fat and sugar are mixed and cooked at high temperature. Levulose is a reducing sugar and when used in traditional Indian recipe leads to browning due to maillard reaction as the protein in the sweet-meat mass attaches itself to the reducing sugar at such high temperature and a browned mass is obtained. According to the petitioners, the invention they have made attempts to overcome the browning due to Maillard reaction/caramelisation by a novel method of Purging Inert Gas (Nitrogen) through Fructose Solution while heating at an elevated temperatures and through different permutations and combinations. The invention made by the petitioners ensured that Maillard Reaction/Caramelistion does not occur or is minimised. According to the petitioners, these combinations have been obtained as a result of application of extensive research and trials to arrive at a combination of parameters which eliminate Maillard Reaction/Caramelisation. It is further contended that this patent, which the petitioners have invented, satisfies the meaning of 'invention' as defined under The Patents Act, 1970 and the steps which the petitioners have taken in that direction satisfies the meaning of the definition 'inventive step' under Section 2 (1) (i) and Section 2 (1) (ia) respectively and also the new invention as defined under Section 2 (1) (l) of The Patents Act, 1970. It is the contention of the petitioners that after sustained research and development made by them, they have overcome the Maillard reaction/Caramelisation through combination of different elements such as Purging of Inert Gas, Use of Vaccum or low pressure, Use of steam and High Pressure, balancing the protein-carbohydrate ratio, altering the reactive temperature, altering the reaction time allowed for such reaction between Protein and carbohydrate, altering the Water activity (lesser water activity leads to lesser Maillard reaction) cooking under an inert gas blanket, balancing to pH etc.,
3. According to the petitioners, the invention they have made provides for three processes/methods for making a non-browned syrup of Levulose to be used in the preparation of sweets. It also provides for two processes/methods to make the non-browned Low Glycemic Levulose/Fructose based sweetmeat by balancing the protein carbohydrate ratio etc., to ensure that there is no Maillard reaction/Caramelisation or that Maillard reaction/Caramelisation is minimised. Further, the invention provides a workable range for the five parameters namely (i) Protein Carbohydrates ratio (ii) Reaction time (iii) Reactive temperature (iv) pH and (v) Water Activity, for the use of Levulose in the form of syrups, Crystalline or Amorphouse/powder forms. Each of the three forms of Levulose have certain parameters only, within which, when used, Maillard Reaction or Browning will not occur. Among these three methods used to prepare levulose syrup, two of these methods talk of high temperature. Only the third method talk of the 60-80 degree Centigrade conjunction with low pressure and vaccum.
4. It is the specific contention of the petitioners that syrups of different thickness are required for manufacturing Indian Sweets and the thickness of the syrup is technically termed as viscosity. For a sweet such as Rosagulla, the syrup has to be really thin almost mimicking water wherein the viscosity should be in the range of 1.2 to 2.0 cps. The viscosity of water is almost zero. For Gulab Jamun, the viscosity is slightly thicker and in the range of 300 to 400 cps. For the traditional halwas, viscosity required should be in the range of 1,00,000 cps. Therefore, the range of viscosity in the patent is between 1.2 to 1,00,000 cps depending upon the sweet to be made, the consistency of sweet etc., Since the number of Indian Sweets prepared with varying consistencies of sugar syrups are innumerable, so is the viscosity range. Thus, according to the petitioners, by the process invented by them, the Maillard Reaction/Caramelisation is prevented from occurring in the process for manufacture of Low Glycemic Indian Sweets using Levulose/Fructose/ Fruit Sugar at elevated temperatures due to use of an inert gas such as Nitrogen under an inert blanket, purging of inert gas such as Nitrogen in the boiling Fructose syrup, use of High Pressure and Steam, use of vaccum and low pressure at 60 to 80 degree Centigrade with prolonged heating, cooking the sweetmeat along with Levulose at high temperatures under an inert gas cover and by purging Nitrogen into the boiling solution, cooling the sweet mass cooked separately before adding the Levulose, all of which satisfies the criteria of an 'innovation' defined under the Patent Act. Furthermore, there being no such process or product available prior to the date of the patent granted in favour of the petitioners and the invention made by the petitioners is commercially workable on a large scale and was found to be extremely useful in overcoming health hazards, thereby satisfying the criteria with regard to 'industrial applicability', 'utility' and resulting in 'economic advantage. The second respondent, considering the above novel invention of the petitioners, had granted the patents in favour of the petitioners on 01.05.2006 under No. 193899 and 200285 in respect of process for preparation of low glycemic sweets and product patent for low glycemic sweets respectively.
5. According to the petitioners, after the second respondent granted patent in favour of the petitioners, the first respondent made attempt to infringe the invention made by them and therefore, the petitioners filed an infringement suit against the first respondent in C.S. No. 495 of 2006 and this Court granted an order of interim injunction restraining the first respondent, their men, agents, servants, legal representatives, successors-in-business, local representatives or any one claiming under them from in any manner infringing the patented process under No. 193899 by making any product using, selling, offering for sale products made with the patented process or otherwise dealing with the patented process in any manner, whatsoever, pending disposal of the suit. According to the petitioners, the order of injunction granted by this Court is still in force. While so, as a counter-blast to the suit filed by the petitioners, the first respondent has filed ORA/3/2010/PT/CH before the third respondent seeking to revoke the patents granted in favour of the petitioners with untenable grounds. The third respondent/Intellectual Property Appellate Board has also entertained the application filed by the first respondent and allowed the same, against which the present writ petitions are filed.
6. In the application filed by the first respondent before the third respondent in ORA/3/2010/ PT/CH seeking to revoke the patents granted in favour of the petitioners, it was contended as under.
7. According to the first respondent, the petitioners have obtained patents for the alleged process for preparation of low glycemic sweets and the product patent for low glycemic sweets for use by diabetic patients. Earlier, the first petitioner has promoted Sundar Chemicals Private Limited, Sundar Diabetics Private Limited and Sundar Diabetics Desire (P) Ltd., and were marketing diabetic sweets under the brand 'Dezire'. According to the first respondent, the patents granted in favour of the petitioners lack novelty, involve no inventive step, have no technical advance and that the patents are obvious and do not involve any new method of process nor produce any new product. In other words, the invention said to have been made by the petitioners will not fall within the scope and ambit of 'innovation' contained under The Patents Act, 1970.
8. According to the first respondent, they are one of the leading merchants of Indian sweets and they are in the business of preparation of sweets for more than three decades. The first respondent had commenced the business in the name and style of 'Adyar Ananda Bhavan' and the said trade name has become popular and was in great demand among the consumers and general public. The first respondent had opened several branches in the State of Tamil Nadu in which sweets were prepared under very hygienic conditions and under the supervision of efficient people, which are sold and marketed under the brand 'Adyar Ananda Bhavan'. During the course of such business, in the year 2005, the first respondent introduced a low calorie sweet and effectively marketed the same. While so, the petitioners claimed to have obtained patent for the process of preparation of low glycemic sweets and also product patent for low glycemic sweets from the second respondent and has now filed the suit for infringement of the patent registered under Nos. 198399 and 200285 and obtained interim injunction against the petitioners.
9. It is mainly contended by the first respondent in the application seeking revocation of the Patent granted in favour of the petitioners that already the Indian sweets with sugar made from cane/fructose are being available and therefore, the patent granted in favour of the petitioners is liable to be revoked. The petitioners mislead the second respondent by stating that the browning of sweet is due to maillard reaction and caramelisation of levulose when heated at elevated temperatures, particularly due to reaction between carbohydrate and protein, which is disadvantageous and undesirable. On the other hand, caramelisation is a natural process, which cannot be said to have been invented by the petitioners as a novel idea. According to the first respondent, Caramelisation and Maillard reactions, which are said to be responsible for browning, requires temperatures that cannot be reached when water is present (the boiling point of water limits the cooking temperature to 212 degree Fahrenheit or less). Further, Caremelisation starts around 310 degree Fahrenheit, whereas, maillard reactions are even higher. Therefore, the claim of the petitioners for minimising caramelisation and maillard reactions at lower temperature is misleading and not correct. In fact, caremelisation in the fructose forms when fructose is heated at about 110 degree Celsius as per the established scientific principles. Further, sugar made of cane also undergoes the process of caramelisation but only at a little higher temperature than the fructose. Thus, caramelisation adds to certain flavour and colour which is desirable for any sweet. The description of the invention said to have been made by the petitioners is already practised in the industry, therefore, the petitioners cannot claim to have invented the patented product. The description of invention as made in the complete specification for manufacturing sweets of low Glycemic index also is not new and is commonly practised in the industry. The description given by the petitioners makes it very obvious that it involves no inventive step and the specifications or the examples appended thereto do not disclose any invention. In such circumstances, the first respondent has prayed for revoking the patents granted in favour of the petitioners.
10. The third respondent/Intellectual Property Appellate Board, on consideration of the rival contentions and on perusal of the documentary evidence, allowed the application filed by the first respondent by giving the below mentioned reasoning in para Nos. 58 and 56, which reads as follows:-
58. We can find the answer to this issue by finding whether addressing this kind of problem forms part of the routine work of a person skilled in the art. Since answer to this is in affirmative. In the present case, we find that neither the posing of such a problem nor a solution which merely involves routine adaptation or the use of known alternatives goes beyond what may be normally expected from an average person skilled in the art. In the context of the normal sweet making activities, motives for finding alternative may include the need for alternative sweetener as such. It may be accepted that the skilled person would adopt a conservative attitude when choosing the parameters and composition of a material (in this case sweetener) where the effect of any changes is difficult to predict. But, in an attempt to find the most appropriate alternatives in the given circumstance, the person skilled in the art must be expected to consider the use of well-known alternative materials which have proven to be suitable in a similar use. Fructose uncontested was, at the priority date of the opposed patent, among the most commonly known sweeteners. Hand book of Sugar (page 1-8) confirms this based on sugar analysis. The choice of a fructose as Sweetner in present claim 1 thus formed part of the normal activities of a person skilled in the art having to select a suitable one among a limited number of well known alternative groups of sugar. This choice did not go against an established prejudice and could be made with a reasonable expectation of achieving known advantages (eg. Low glycemic index and lower costs) in the sweets. Following the conservative attitude mentioned above, the person skilled in the art would start routine trials with fructose and other sweeteners. Proceeding in this manner, the person skilled in the art would have arrived using fructose as claimed in claim 1 by using, in an obvious manner, a sweetener generally available on the market and suitable for the purpose.
55. The respondent has cited cases referred above relating to obviousness, inventive step, commercial success etc., which we find are not so relevant in this case partly because of the difference in issues involved and partly because of the peculiar facts of this case. In view of the above analysis and findings, we are inclined to agree that the subject matter of the invention of the opposed patent does not involve an inventive step. The revocation petition therefore succeeds on this ground and hence grant of patent number 200266 is set aside.
11. Mr. Satish Parasaran, learned Senior counsel appearing for the petitioners would vehemently contend that the first respondent did not produce any material evidence to show that the patented process invented by the petitioners was in existence or was used prior to the grant of patent in their favour. Similarly, no material evidence was filed to prove that such process was in common knowledge with those acquainted with preparation of sweets. Therefore, according to the learned Senior counsel for the petitioners, the third respondent/appellate authority, on the basis of surmises, has allowed the revocation application filed by the first respondent. The third respondent/Appellate authority also did not seek for any expert opinion or any scientific proof to satisfy itself as to whether the process or product invented by the petitioners does not disclose any invention at all or it was not new. According to the learned Senior counsel for the petitioners, the third respondent/appellate authority did not understand the scope of inventive step involved in preparation of low glycemic sweet fit for consumption by diabetic patients and erred in holding that the alleged invention did not contain a temperature range within which it worked. The learned Senior counsel for the petitioners would further contend that the third respondent erred in arriving at a conclusion that the invention made by the petitioners lacked initiative step. According to the learned Senior counsel for the petitioners, inventive step lies in preparing traditional Indian sweets with low glycemic index using Levulose overcoming Maillard Reaction/Caramelisation, maintaining the same organoleptic properties, textural and visual properties of traditional Indian sweets conventionally prepared or produced using same sugar, using Levulose or Fructose in either powder, crystalline or syrup form by preparing non-brown syrup having viscosity of varying ranges depending upon the recipe being prepared by purging Nitrogen and using an inert blanket or using high pressure. The invention made by the petitioners also include cooking the sweetmeat and Levulose together at elevated temperatures by purging Nitrogen and under the cover of an inert blanket or progressively heating the solution in a closed chamber under high pressure without outlet for steam release or prolonged heating of the solution at low pressure or vaccum in a closed chamber at temperatures at about 60 to 80 degree centigrade. The invention further includes a method of cooking the sweetmeat separately and adding Levulose to the cooked sweetmeat at ambient temperatures, unlike the traditional method, wherein the sweetmeat, the fat and the sugar are all cooked together at the same time at elevated temperature. While so, the third respondent failed to appreciate that fructose or fruit sugar, which is a natural substitute and ideal for diabetic and health watchers cannot be cooked in the same way as sugar is done and can never be a substitute for sugar as understood in the normal parlance. The third respondent also committed an error in concluding that fructose was already well known and was to replace sugar. On the contrary, the plea of the petitioners is that the patent was not for fructose but the manufacturing process of non-browned sweets using Levulose and Fructose as a raw material required for processing before obtaining the product. The learned Senior counsel for the petitioners would further contend that the third respondent erred in construing that the temperature range to be the only parameter used for preparation of non-browned Fructose syrup and failed to appreciate that lower temperature coupled with low pressure or vaccum leads to lower boiling point which ensures that the Water activity comes down, which is also one of the factors to be considered for Maillard Reaction/Caramellisation to set in. Thus, it is the contention of the learned Senior counsel for the petitioners that the comparision made by the third respondent with 'Grand Ma' method of preparing sugar based syrup for preparing regular Sugar Syrup is totally irrelevant in the context of patent. The third respondent did not appreciate that Levulose and regular sugar do not react in the same manner and their production process totally differ. The third respondent, without appreciating the above factors has allowed the application filed by the first respondent and therefore, the learned Senior counsel for the petitioners prayed for allowing the writ petitions.
12. In support of his contention, the learned Senior counsel for the petitioners relied on the decision rendered in (Canadian Electric Company Limited vs. Fada Radio Limited) reported in AIR 1930 Privy Council 1 wherein it was held as follows:-
....The law on this subject is, in their Lordships' opinion, accurately summarized by Maclean, J., in his Judgment at p.393 of the Record. His statement is as follows:-
'There must be a substantial exercise of the inventive power or inventive genius. Though it may in cases be slight, slight alterations or improvements may produce important results, and may disclose great ingenuity. Sometimes, it is a combination that is the invention. If the invention requires independent thought, ingenuity and skill, producing in a distinctive form a more efficient result, converting a comparatively detective apparatus into a useful and efficient one, rejecting what is bad and useless in former attempts and retaining what is necessary and uniting them all into, an apparatus which, taken as a whole, is novel, there is subject matter. A new combination of well known devices, and the application thereof to a new and useful purpose, may require invention to produce it and may be good subject matter for a patent.'
13. On the contrary, the learned Senior counsel for the first respondent would justify the order passed by the third respondent by contending that the third respondent rightly concluded that the sweets made with Fructose is also available readily in the Indian market. Fructose like Diet Rasagullah, Diet Chikki, Diet Cake Peda and so on are widely sold in the market. The contention of the petitioners that browning of sweet is due to maillard reaction and caramellisation of levulose when heated to elevated temperatures is untenable. In fact, caramellisation is a natural process. The sugar made of cane also undergoes the process of caramellisation but only at little higher temperature than fructose. Thus, caramellisation adds to certain flavour and colour which is desirable for any sweet. Even in the sweets prepared with sugar made from cane, there is a process of caramellisation and it is not new. In such circumstances, the petitioners cannot claim any exclusive right for their invention. One of the processes described by the petitioners is heating solution fructose in closed chamber with outlet for steam release in the range of 2 to about 12 times the atmospheric pressure and producing viscosity from 1.12 CPS upto 1,00,000 CPS. This is too wide and vague and it involves no new invention or new inventive step. Interestingly, another process described in the specification is heating fructose solution at low pressure at 60 to 80 degrees Celcius. In fact, caramellisation in the fructose forms when fructose is heated about 110 degree Celcius as per the established scientific principles. Therefore, the specification furnished by the petitioners does not indicate any new method or process or imparts any method or process for making fructose syrup. Consequently, the present patent issued in favour of the petitioners relates to a process which is already in the common knowledge of those involved in the preparation of sweets and the petitioners cannot claim to be an inventor or an exclusive inventor of the said process. Moreover the invention so made by the petitioners are not so unique and not comprehensive particularly with regard to the methods of heating and obtaining viscosity. The viscosity is obtained by heating sugar or fructose and the description of the invention as given in the specification by the petitioners lack inventive step. This was rightly appreciated by the third respondent/appellate authority and allowed the application filed by the first respondent. Therefore, according to the learned Senior counsel for the first respondent, the third respondent, upon elaborate consideration of the rival contentions, has come to a correct conclusion to revoke the patents granted in favour of the petitioners and such a conclusion arrived at by the third respondent need not be interfered with by this Court
14. The learned Senior counsel for the first respondent would further contend that the third respondent, as a fact finding authority, had appreciated the factual aspects and came to an irresistible conclusion that what was claimed to be an invention by the petitioners does not fall within the scope and meaning of 'invention' contained under The Patents Act, 1970 and that the so called process and the product invented by the petitioners is already in the field. According to the learned Senior counsel for the first respondent, such a finding arrived at by the third respondent need not be interfered with by this Court in exercise of power under Article 226 of The Constitution of India, unless it is shown that the conclusion arrived at by the third respondent is arbitrary, based on irrelevant material evidence or is capricious. In support of this contention, the learned Senior counsel for the first respondent relied on the decision of the Division Bench of this Court in the case of (M/s. World Wide Brands Inc., vs. Smt. Dayavanti Jhamnadas Hinduja and another) reported in 2009 1 Law Weekly 658 wherein it was held that in exercise of the powers conferred under Article 227 of The Constitution of India, the Revision filed by the petitioner cannot be entertained especially when the findings rendered by the Appellate Board are only on consideration of the documents relied on by the petitioner. By citing the above decision of the Division Bench of this Court, the learned Senior counsel for the first respondent would only contend that this Court, in exercise of the power conferred under Article 226 of The Constitution of India, need not entertain this writ petition filed by the petitioners and prayed for dismissal of the same.
15. We have given our anxious consideration to the rival submission made and perused the materials placed. The main contention putforth by the petitioners is that the process invented by them resulted in the Maillard Reaction/Caramelisation being prevented from occurring in the process for manufacture of Low Glycemic Indian Sweets using Levulose/Fructose/Fruit Sugar at elevated temperatures due to use of an inert gas such as Nitrogen under an inert blanket, purging of inert gas such as Nitrogen in the boiling Fructose syrup, use of High Pressure and Steam, use of vaccum and low pressure at 60 to 80 degree Centigrade with prolonged heating, cooking the sweetmeat along with Levulose at high temperatures under an inert gas cover and by purging Nitrogen into the boiling solution, cooling the sweet mass cooked separately before adding the Levulose, all of which satisfies the criteria of an 'innovation' defined under the Patent Act. Furthermore, there being no such process or product available prior to the date of the patent granted in favour of the petitioners and the invention made by them is commercially workable on a large scale and was found to be extremely useful in overcoming health hazards, thereby satisfying the criteria with regard to 'industrial applicability', 'utility' and resulting in 'economic advantage, the second respondent granted the patents in favour of the petitioners on 01.05.2006 under No. 193899 and 200285 in respect of process for preparation of low glycemic sweets and product patent for low glycemic sweets respectively. This contention urged on behalf of the petitioners was rejected by the third respondent on the main ground that the so called invention made by the petitioners will not fall within the purview of 'invention' defined under The Patents Act, 1970. Therefore, it is essential to look into the definitions given to various terms under Section 2 of The Patents Act, 1970 which reads as follows:-
2 (1) (i) - Invention means a new product or process involving an inventive step and capable of industrial application 2 (1) (iia) - 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.
16. Therefore, it is evident from Section 2 of The Patents Act, 1970 that an invention must be in relation to a new product or process of a product involving an inventive step and capable of industrial application. It must contain a feature that involves technical advance as compared to the existing knowledge or having economic significance or both and it makes the invention not obvious to a person skilled in the art. Thus, an invention must involve a new process or a product which must not be in existence. Applying the above definition given to the words inventive step or invention in The Patents Act, 1970, the dispute between the petitioners and the first respondent has to be analysed, particularly with reference to the definition given under Section 2 (1) of The Patents Act, 1970.
17. The petitioner claims that in normal circumstances, Levulose, when used at high temperature, result in a brown mass due to Maiilard reaction/ Caramelisation Maiilard reaction which occurs between protein element of the sweet-meat and the carbohydrate of the fructose when they are cooked at high temperatures, as required for preparing traditional Indian sweets. The sweets prepared with the formation of brown mass Maiilard reaction/Caramelisation Maiilard reaction is unhealthy when consumed by the consumers. According to the petitioners, by the process invented by them, the Maillard Reaction/Caramelisation is prevented from occurring in the process for manufacture of Low Glycemic Indian Sweets using Levulose/Fructose/ Fruit Sugar at elevated temperatures due to use of an inert gas such as Nitrogen under an inert blanket, purging of inert gas such as Nitrogen in the boiling Fructose syrup, use of High Pressure and Steam, use of vaccum and low pressure at 60 to 80 degree Centigrade with prolonged heating, cooking the sweetmeat along with Levulose at high temperatures under an inert gas cover and by purging Nitrogen into the boiling solution, cooling the sweet mass cooked separately before adding the Levulose, all of which satisfies the criteria of an 'innovation' defined under the Patent Act. It is further claimed that this invention made by the petitioners addresses the needs of not only people with diabetes, but also children with juvenile diabetes and it is the first in the World to use Levulose in powder, Crystalline or syrup form to manufacture traditional sweets. Considering the same, the second respondent has granted patent in favour of the petitioners, which was erroneously revoked by the third respondent.
18. This contention of the petitioners is repudiated by the first respondent by contending that the second respondent has erroneously granted process and product patent in favour of the petitioners. The method of cooking sweetmeat by heating sweetmeat masses and adding fructose after sweatmeat is cooked, is nothing but a common traditional method used in sweet. The process said to have been invented by the petitioners is a natural and traditional way of cooking used in every household and also is being adopted in preparation of cooking stuff leave alone sweetmeats.
19. On appreciation of the rival contentions, we are of the view that admittedly, there is no scientific proof made available to show that the process said to have been invented by the petitioners resulted in elimination of Maillard Reaction/ Caramelisation in the process for manufacture of Low Glycemic Indian Sweets using Levulose/Fructose/ Fruit Sugar at elevated temperatures. It is not known as to whether Purging Inert Gas (Nitrogen) through Fructose Solution while heating at an elevated temperatures and through different permutations and combinations would overcome browning due to Maillard reaction/caramelisation. However, the Tribunal has come to a conclusion that the invention said to have been made by the petitioners, relating to both the process and the product, is not new and it is obvious. In our view, the third respondent/appellate authority ought to have sought the aid of experts or any scientific proof before arriving at a conclusion that the invention so made by the petitioners is not new or it is obvious and normal in the given field. In this context, we are fortified by the decision rendered by the Honourable Supreme Court in (Tata Cellular vs. Union of India). Useful reference can be made from the decision of the Honourable Supreme Court as follows:-
82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has this to say :
"If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. 'It makes judicial review of administrative orders a hopeless formality for the litigant....
It reduces the judicial process in such cases to a mere feint.' Two overriding considerations have combined to narrow the scope of review. The first is that of deference to the administrative expert. In Chief Justice Neely's words :
'I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.' It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies, If a court were to review fully the decision of a body such as state board of medical examiners 'it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the Pharmacopoeia'. Such a situation as a state court expressed it many years ago 'is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question'.
20. It is well settled that the Courts are not experts of expert to arrive at a finding with respect to intricate technicalities which are hard to follow or to scientifically evaluate a particular dispute and to render solution. In matters of this nature, this Court cannot render any finding in the absence of any scientific proof, therefore, this Court is left with no other option except to restrain from rendering any finding in this case. In effect, the dispute involved in the present writ petition requires scientific proof as to whether the process said to have invented by the petitioners would result in elimination of the browning occurring in the process of traditional method of sweets and that the low glycemic sweets prepared by the petitioners would result in more and more diabetic patients or persons with diabetic tendencies to consume the same. Therefore, it is desirable that without rendering any opinion as to the correctness or otherwise of the conclusion arrived at by the third respondent, we are of the view that the matter has to be remanded back to the third respondent with a direction to get scientific or technical evidence required to more effectively adjudicate the dispute between the petitioners and the first respondent. It is also open to the petitioners as well as the first respondent herein to produce such evidence to prove their case scientifically so as to enable the third respondent to arrive at a just and effective conclusion.
21. Accordingly, we set aside the order dated 24.11.2011 passed by the third respondent in ORA/3/2010/ PT/CH and consequently, both the writ petitions are allowed. The matter is remanded back to the third respondent/Intellectual Property Appellate Board with a direction to consider the application filed by the first respondent for revocation of the Patents granted in favour of the petitioners afresh. No costs. Consequently, connected miscellaneous petitions are closed.
(R.P.S.J.,) (P.D.A.J.,)
14-06-2018
rsh
Index : Yes / No
To
1. Controller of Patents
Patents Office, Chennai Branch
Intellectual Property Rights Building
G.S.T. Road, Guindy
Chennai 600 032
2. Intellectual Property Appellate Board
Guna Complex
II Floor, Anna Salai
Teynampet, Chennai 600 018
R. SUBBIAH, J
and
P.D. AUDIKESAVALU, J
rsh
Pre-delivery Common Order in
WP Nos. 29318 & 29329/2011
14-06-2018