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Mohan Padmanabhan

KOLKATA, April 25

THE Central Government has preferred not to appeal against the landmark judgment of Mr Justice Ashok Kumar Ganguly of the Calcutta High Court in the biotech patent case.

The court had set aside the decision of the Controller of Patents and Designs not allowing patent in respect of bio-technological process for producing vaccine containing living micro-organism/virus/living entity.

The Controller of Patents, pursuant to the direction to that effect contained in the High Court judgement, has now accepted the concerned Indian patent application of Dimminaco AG, a Swiss company. The company had applied for a patent of process involving the manufacture of a vaccine for infectious bursitis in poultry.

The Patent Office here has already written to D.P. Ahuja & Co, Patent and Trade Mark attorneys, indicating that the application of Dimminaco has been accepted and will be duly notified in the official gazette in due course.

Talking to Business Line, Mr Samaresh Chakraborty, senior patent attorney attached to D.P. Ahuja & Co, who argued the case for the appellant, said the propositions enunciated in the said judgement, were now final and binding, and should provide a breakthrough for allowing such bio-tech related patent applications in India.

He felt that such patent applications might lead to increased manufacture and use of improved pharmaceutical products in the country.

Commenting on the earlier scenario, he said while there was increasing demand for recognition of new and useful bio-technological matter as patentable, the Indian Patent Office did not allow patents for the same, on the plea that the products of such inventions contain living micro-organism/virus/living entity, and therefore "process for its production could not be deemed to be manner of manufacture''.

He also cited the path-breaking decision by the US Supreme Court in 1980 (in Diamond Vs Chakraborty), which recognised the invention of Dr Amanda Mohan Chakraborty, in the field of bio-technology, as a patentable subject, and after which the US Patent Office started granting a large number of patents in the said field. "And 22 years later, the Indian Patent Office has been directed by the Calcutta High Court to accept bio-tech matter as patentable, even if the end product thereof contained a living micro-organism/living entity.''

Dwelling on the significance of the judgement, the patent attorney said the judge upheld the contention of the appellant that in the absence of any statutory definition of "manufacture'', the dictionary meaning must be accepted, "if the end product is a commercial and vendible entity, and for that, presence of living virus/micro-organism in the end product cannot be a bar to its patent ability''.

The court was of the view that the concerned subject matter was not a non-patentable one as per the Indian Patents Act, and that the Supreme Court had already held that the object of the Patent Law was to encourage scientific research, new technology and industrial process.

According to Mr Chakraborty, what needs to be considered is whether the claimed subject matter has novelty and utility, and whether the concerned technology leads to a vendible product.

Stating that the order passed by the Controller that the claimed process does not lead to the manufacture of a substance cannot be accepted, the High Court has clarified that since the process for patent leads to a vendible product, it is certainly a substance after going through the process of manufacture.

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