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10. Learned counsel for the plaintiff relies upon the guidelines issued by the European Patent Office for examination of patent wherein it is noted that combining of two or more parts of the same disclosure would be obvious if there is a reasonable basis for the skilled person to associate these parts with one another. Though it would be generally speaking obvious to combine two documents one of which contains a clear and unmistakable reference to the other which are considered an integral part of disclosure, however even combination of features may be an indication of the presence of an inventive step. Relying upon the decision of this Court in F. Hoffmann-La Roche Ltd. & Anr. Vs. Cipla Ltd. (2015) 225 DLT 391 DB it is contended that to show obviousness besides structural similarity there should be a reason or motivation shown in the prior art to make the particular structural change in order to achieve the properties that the applicant was seeking. Further, it has also to be examined whether taking the teachings in the prior document as a whole there is no teaching away from the invention. Reliance is also placed on the decision in Eli Lilly Vs. Zenith Goldline F.3d 1369 (Fed.Cir.2006). Referring to the decision in Les Laboratories Servier, Adir, Oril Industries Servier Canada Inc., Servier Laboratories (Australia) Pty Ltd and Servier Laboratories Limited Vs. Apotex Inc & Apotex Pharmachem Inc. [2008 FC 825] it is stated that a person ordinarily skilled in the art cannot simply create mosaic and there are rules of mosaicing. The party claiming obviousness should be able to demonstrate not only that the prior art exists but also as to how the person of ordinarily skilled in the art would have been led to combine the relevant components from the mosaic of prior art. Relying upon the decision of Intellectual Property Office in Nampak Cartons Ltd. and Rapid Action Packaging Ltd. BL 0/342/09 it is contended that though it might be tempting to put together a combination to show how the inventor may have arrived at the inventive concept, but this requires a significant degree of hindsight both in selecting the relevant disclosure from the documents and also disregarding „irrelevant‟ or unhelpful teaching in them.

119. On the various tests as noted above, there is no dispute between Cipla and Roche however the dispute arises whether the teaching of prior art document should be considered as a whole, whether there should be no teachings away and whether evidence to try merely on structural similarity can form the basis for selection of lead compound in a prior art.
121. In re: Dillon relied upon by learned counsel for Cipla, though the majority held that a prima facie case for obviousness of chemical composition is established if there is structural similarity between claimed and prior art subject matter, proved by combining references or otherwise, and if prior art gives reason or motivation to make claimed composition however, the minority judgment noting various authorities held that Courts have expressed dissatisfaction on the earlier rule that „structural obviousness„ alone was deemed to create a presumption of unpatentability. The minority held that the weight of the authorities would show that structural similarity of the prior art compound cannot be the criteria alone and the prior art must prima facie suggest both similar structure and property before the burden shifts to the applicant to prove the unexpected differences. Even in 444.2d 581 re: John R. Slemniski the Court held that similarity of structure alone was insufficient for prima facie unpatentability. Thus to show obviousness besides structural similarity there should be a reason or motivation shown in the prior art to make the particular structural change in order to achieve the properties that the applicant was seeking."
255. Another factor that makes the task more difficult is that, as conceded by Dr. Marshall, small changes in structure can have unpredictable pharmacological effects.
256. The experts produced by Apotex who spoke to this issue focussed on each of the individual component from the prior art. When speaking of the obviousness of the 6, 5 bicyclic ring, none of those experts effectively explained how a person skilled in the art would have known to combine all of the disclosures of the prior art to come up with perhydroindole ring structure. I accept that there were suggestions in the prior art that such a ring might work. However, combining all of the suggestions of the prior art is, in my view, likely a task that required ingenuity and inventiveness. Overall, I prefer the expert evidence of Drs. Trost, Bartlett and Cimarusti."
(vi) It has to be borne in mind, small changes in structures can have unpredictable pharmacological effects and thus, structural similarity alone is not sufficient to motivate to selection of the lead compound.
(vii) Though it would be tempting to put together a combination of prior arts but this requires a significant degree of hindsight, both in selection of relevant disclosures from these documents and also in disregarding the irrelevant or unhelpful teachings in them.