Lakshmikumaran & Sridharan 律师事务所An ISO 9001 / 27001 certified law firm

Post- grant opposition – Limitation Act not applicable

November 21, 2012  

The Intellectual Property Appellate Board dismissed the application seeking revocation of patent for an invention relating to process of oxidation of cold water soluble part of the tea infusion (decreamed fraction) which is substantially free of cold water insolubles (cream fraction). The invention was to improve the colour characteristics of the mixture. The claimed invention was held as not anticipated by the prior art citations as the cream and the decreamed portions were found not to be same and hence not following the same chemistry. The Board noted that first, the starting material was new (decreamed fraction) and secondly, the oxidation of this fraction does not lead to excessive darkening as it happens when the cream portion is oxidized. It was also held that the invention was non-obvious and involved inventive step.
 
Noting that it is not necessary for the purpose of Section 10(4) of the Patents Act that the disclosure of a patent be adequate to enable the skilled person to carry out all conceivable ways of operating the invention, it was also held that if the best method known to the patentee is disclosed it satisfied the requirement of sufficiency.      

On other issues, the Board was of the view that revocation application can be filed before Appellate Board any time after the grant of a patent and that the right to revoke patent any time after the grant of patent under Section 64 cannot be extinguished after three years from the date of the publication of the grant by applying limitation of three years under Section 137 of the Limitation Act. The Board also accepted the expert evidence although the verification was not properly done, noting that such acceptance would not make any difference in the opinion of the expert.
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