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Judgment
239 paragraphs · 3,963 words,
The present appeal has been filed under Section 117A of the Indian Patents Act, 1970 against the order dated 13/05/2020, passed by Respondent,",
being the Assistant Controller of Patents & Designs, under Section 15 of the Indian Patents Act, 1970, refusing to grant the Appellant’s Indian",
patent application no. 2668/DEL/2015.,
It is the case of the appellant that:,
The patent application IN’2668 is directed to a synergistic herbicidal composition, comprising: (a) a aryloxyphenoxypropionic ester; (b) two",
acetolactate synthase (ALS) inhibitors; and (c) additives, wherein aryloxyphenoxypropinoic ester and two acetolactate synthase (ALS) Inhibitor are",
present in a ratio ranging from 1.00:1.77 to 1.00:1.82.,
 None of the prior art cited by the Respondent either discloses or describes or exemplifies, a herbicidal composition comprising;",
(a) a aryloxyphenoxypropionic ester;,
(b) two acetolactate synthase (ALS) inhibitors; and,
(c) Additives, wherein aryloxyphenoxypropinoic ester and two acetolactate synthase are present in a ratio ranging from 1.00:1.77 to 1.00:1.82.",
 Novelty of the said compound is therefore beyond any possible doubt and the impugned order to the contrary is baseless and liable to be set aside.,
All other findings of Lack of novelty and inventive step or section 3 (e) are all based on such erroneous finding of anticipation and are therefore,
equally fallacious and baseless.,
 The controller has held that such ingredients were already known in prior art citations of D1-D5. However, the error committed is that there is no",
prior art which contains the combination of the two active ingredients namely a aryloxyphenoxypropionic ester, two acetolactate synthase (ALS)",
Inhibitor and additives which is the inventive composition.,
 The controller has cited D1 and D2 in the reasoning to substantiate its finding on lack of inventive step.,
 The Controller has held that D1 discloses “a herbicidal composition comprising a herbicidal effective amount of (a) a compound of the formula,
(I) or an agriculturally acceptable salt or ester thereof and (b) a synthetic auxin herbicide.â€,
Perusal of D1 (US 20150018214) (page 1-10 of Appellant’s documents dated 19.08.2020) establishes that D1 does not contain any such,
composition of Formula I and Synthetic auxin herbicide. Instead it contains a herbicidal composition of Pyridate and one sulphonyl urea compounds,
selecting from the group consisting of flazasulfuron, nicosulfuron, trifioxysulfuron, chlorimuron and its alkyl ester, halosulfuron and its alkyl ester, and",
their salts. (Claim 1, page 9 of Appellant’s Documents dated 19.08.2020)",
 D1 is actually distinguishable from subject invention as under:,
 The Controller has referred to prior art namely D2 (US 2014/0031214)(page 11 of Appellant’s Documents dated 19.08.2020) and held that,
“Document D2 also discloses some of the herbicides that can be employed in conjunction with the composition include Fenoxaprop-p-ethyl, ALS",
inhibitors.â€,
However, D2 does not disclose nor makes obvious the composition of a aryloxyphenoxypropionic ester, two acetolactate synthase (ALS) Inhibitor and",
additives.,
D2 discloses a herbicidal composition comprising a herbicidally effective amount of Compound of Formula I and synthetic Auxin herbicide. The,
subject invention neither contains compound of formula I nor synthetic auxin herbicide and therefore the finding of the Controller that D2 discloses or,
makes the subject invention obvious is erroneous. The distinction between the subject invention and D2 is evident as under:,
D2,"Compound of Formula I
+ Synthetic Auxin + one or more other herbicide
(selected from list of 580 compounds [Paragraph
0131])
Present
Invention","a aryloxyphenoxypropionic ester (of which
Fenoxaprop-p-ethyl is a known compound) + 2 ALS
inhibitors (either of two groups amongst Sulfonyl urea
group, Sulfonamide group and Imidazolinone group)
ammonium, imazamox, imazamox-ammonium, imazamethabenz, imazamethabenz-methyl or imazapic (Abstract, claim 1, para 0003, 0041-0042, whole",
document). Hence, in view of the above cited document D1 its appear that the herbicidal composition, claimed by the applicant in claims 1 of the",
present application is already exist.,
Therefore, the subject matter of claims 1-15 are not considered to be novel over the disclosure of D1.",
Claim(s) (1-15) lack(s) inventive step, being obvious in view of teaching (s) of cited document(s) above under reference for the following reasons:",
Subject-matter of claims 1-15 does not meet the requirements of an inventive step as it does not appear to involve any technical advancement or,
economic significance over the following cited documents. Since the subject matter of the claims 1-15 are not novel, inventive step for the said claims",
is also not acknowledged. However, following documents are considered for inventive step analysis. D2: US 20140031214 A1 D3: US 8785351 B2",
D4: WO 2002015694 A2 D5: US 8822377 B2.,
Document D2 discloses a herbicidal composition comprising a herbicidally effective amount of (a) a compound of the formula (I) or an agriculturally,
acceptable salt or ester thereof and (b) a synthetic auxin herbicide. Document D2 also discloses some of the herbicides that can be employed in,
conjunction with the composition include Fenoxaprop-p-ethyl, ALS inhibitors are selected from the group consisting of: (a) sulfonylureas such as",
rimsulfuron (DPX 9636), metsulfuron, metsulfuronmethyl, ethametsulfuron, nicosulfuron, triasulfuron, primisulfuron, bensulfuron, Chlorimuron,",
chorimuron- ethyl, chlorsulfuron, sulfometuron, thifensulfuron, tribenuron, triflusulfuron, clopyrasulfuron, and pyrazasulfuron; b) sulfonamides such as",
flumetsulam (DE498); and c) imidazolinones such as imazaquin, imazamethabenz, imazapyr, imazmethapyr and Imazethapyr. Further docuemnt D2",
discloses additives for use in the compositions include but are not limited to compatibilizing agents, antifoam agents, sequestering agents, neutralizing",
agents and buffers, corrosion inhibitors, dyes, odorants, spreading agents, penetration aids, sticking agents, dispersing agents, thickening agents,",
freezing point depressants, antimicrobial agents, and the like. (Abstract, claims 1-28, para 0005-0006, 0131, 0142, whole document).",
Document D3 discloses a syngergistic herbicidal composition comprising three herbicidal active ingredients, wherein the herbicidal active ingredients",
consist of bentazon-sodium, an ALS inhibitor, and an ACCase inhibitor. Document D3 also discloses the ALS inhibitor is penoxsulam, bispyribac-",
sodium, azimsulfuron, bensulfuronmethyl, chloransulam, cinosulfuron, diclosulam, ethoxysulfuron, flazasulfuron, florasulam, flumetsulam, halosulfuron-",
methyl, imazamox, imazethapyr, imazosulfuron, iofensulfuron, metazosulfuron, metsulfuron-methyl, orthosulfamuron, propyrisulfuron, pyrazosulfuron-",
ethyl, pyribenzoxim, pyriftalid, pyriminobac-methyl, pyrimisulfan, pyroxsulam or triafamone. Further docuemnt D3 discloses the ACCase inhibitor is",
cyhalofop- butyl, fenoxaprop-Pethyl, clodinafop-propyrgyl, diclofop-methyl, fluazifop-P-butyl, haloxyfop-methyl, propaquizafop, quizalofop- Pethyl,",
clethodim, cycloxydim, profoxydim, sethoxydim, tepraloxydim, tralkoxydim or pinoxaden (Abstract, claims 1- 15 and 22, whole document). Document",
D4 discloses a herbicidal composition comprising a herbicidally acceptable carrier and/or surface active agent and, as active ingredient, a",
synergistically effective amount of (1) at least one 2-phenyl-4- (hetero-) aryloxypyrimidine of formula I, (2) at least one additional herbicidal",
compound, which is active against broadleaved weeds and/or annual grasses; and/ or (3) at least one additional safening compound.",
Document D4 also discloses additional herbicidal compound (2) is selected from a) a lipid biosnthesis inhibitor: chlorazifop, clodinafop, clofop,",
cyhalofop, diclofop, fenoxaprop, fenoxaprop-P, fenthiaprop, fluazifop, fluazifop-P, haloxyfop, haloxyfop-P, isoxapyrifop, propaquizafop, quizalofop,",
quizalofop-P, trifop, alloxydim, butroxydim, clethodim, cloproxydim, cycloxydi , profoxydim, sethoxydim, tepraloxydim, tralkoxydim, butylate, cycloate,",
di-allate, dimepiperate, EPTC, esprocarb, ethiolate, isopolinate, methiobencarb, molinate, orbencarb, pebulate, prosulfocarb, sulfallate, thiobencarb,",
tiocarbazil, tri-allate, vernolate, bensulide, benfuserate or ethofumesate; b) an acetolactate synthase inhibitor: a sulfonyl urea type herbicide:",
amidosulfuron, azimsulfuron, bensulfuron, chlorimuron, chlorsulfuron, cinosulfuron, cyclosulfamuron, ethametsulfuron, ethoxysulfuron, flazasulfuron,",
flupyrsulfuron, foramsulfuron, halosulfuron, imazosulfuron, iodosulfuron, mesosulfuron, metsulfuron, nicosulfuron, oxasulfuron, primisulfuron,",
prosulfuron, pyrazosulfuron, rimsulfuron, sulfometuron, sulfosulfuron, thifensulfuron, triasulfuron, tribenuron, trifloxysulfuron, triflusulfuron, tritosulfuron,",
propoxycarbazon or flucarbazon; a sulfonamide type herbicide: chloransulam, diclosulam, florasulam, flumetsulam, metosulam or penoxsulam; an",
imidazolinone type herbicide: imazamethabenz , imazamox, imazapic, imazapyr, imazaquin or imazethapyr; a pyrimidyl ether: bispyribac, pyribenzoxim,",
pyriftalid, pyrithiobac or pyriminobac (Abstract, claims 1-19, whole document).",
Document D5 discloses a herbicidal composition comprising: a) a herbicide compound Awhich is selected from topramezone, the salts and esters,",
carbonates or thiocarbonates thereof; and b) a second herbicide compound B which is pinoxaden; and c) a herbicide safener compound C, which is",
selected from cloquintocet, a salt or an ester thereof; wherein the weight ratio of the herbicide compound A and the herbicide compound B is from 1:1",
to 1:15 and the weight ratio of the herbicide compound A and the herbicide safener compound C is from 4:1 to 1:7, wherein the herbicide compound A",
is calculated as topramezone. Document D5 also discloses composition further comprises at least one herbicide compound D which is selected from,
the group consisting of D.1 synthetic lipid biosynthesis inhibitors; D.2 acetolactate synthase inhibitors; D.3 photosynthesis inhibitors; D.4,
protoporphyrinogen-IX-oxidase inhibitors; D.5 bleacher herbicides; and D.6 auxinic herbicides. Further document D5 discloses lipid biosynthesis,
inhibitor selected from the group consisting of clodinafop, diclofop, fenoxaprop, fenoxaprop-P and tralkoxydim and, where applicable, a salt or an ester",
thereof and acetolactate synthase inhibitor selected from the group consisting of amidosulfuron, chlorsulfuron, florasulam, flucarbazone,",
flucetosulfuron, flupyrsulfuron, imazamox, iodosulfuron, mesosulfuron-methyl, metazosulfuron, metsulfuronmethyl, propoxycarbazone, prosulfuron,",
pyrimisulfan, pyroxsulam, sulfosulfuron, thiencarbazone, thifensulfuronmethyl, triasulfuron, tribenuron-methyl, tritosulfuron and, where applicable, a salt",
or an ester thereof (Abstract, claims 1-15, whole document).",
BY analysis of the above cited documents it appears that the combination of the technical teaching as disclosed in D1- D5 is suggested to the skilled,
person in order to provide claimed herbicidal composition, without any technical advancement or economic significance over the prior art.",
Hence, in view of the above cited documents the present claims 1 lacks inventive step & fails to meet the requirement of section 2(1) (j)(a) of the",
Patents Act, 1970. Further, the dependent claims do not appear to contain any additional features which, in combination with the features of any claim",
to which they refer, involve an inventive step, because the subject-matter concerns only minor modifications which are obvious in view of D1- D5.",
Hence claims 1- 15 lack inventive step.,
Claim(s) (1-15) are statutorily non-patentable under the provision of clause ( e ) of Section 3 for the following reasons: Claims 1-15 are fall u/s 3(e) of,
the Patents act, 1970, as the said claims defines a mere admixture resulting only in the aggregation of the properties of the components thereof. It is",
not clear if the combined agents act together to provide a technical effect that is greater than just the sum of the two or more agents alone, or whether",
the combination is in fact a mere juxtaposition with no interaction of the agents.,
The hearing notice issued after consideration of the response of the FER by the appellant on 09/10/2019 carried the following objections:,
Objections Invention u/s 2(1)(j),
Referring to Inventive step, the reply submissions are unacceptable in view of prior art cited in FER, as document D1 discloses a herbicidal",
composition comprising synergistically effective amounts of (A) pyridate or its salt and (B) at least one sulfonylurea compound selected from the,
group consisting of flazasulfuron, nicosulfuron, trifloxysulfuron, chlorimuron and its alkyl ester, halosulfuron and its alkyl ester, and their salts.",
Document D1 also discloses composition further comprises aryloxyphenoxypropionic ester such as fenoxaprop-P-ethyl, sulfonamide such as",
flumetsulam and an imidazolinone type such as imazapyr, imazapyr- isopropylammonium, imazethapyr, imazethapyr-ammonium, imazaquin,",
imazaquinammonium, imazamox, imazamox-ammonium, imazamethabenz, imazamethabenz-methyl or imazapic (Abstract, claim 1, para 0003, 0041-",
0042, whole document). a herbicidal composition comprising a herbicidally effective amount of (a) a compound of the formula (I) or an agriculturally",
acceptable salt or ester thereof and (b) a synthetic auxin herbicide. Document D2 also discloses some of the herbicides that can be employed in,
conjunction with the composition include Fenoxaprop-p-ethyl, ALS inhibitors are selected from the group consisting of: (a) sulfonylureas such as",
rimsulfuron (DPX 9636), metsulfuron, metsulfuronmethyl, ethametsulfuron, nicosulfuron, triasulfuron, primisulfuron, bensulfuron, Chlorimuron,",
chorimuron-ethyl, chlorsulfuron, sulfometuron, thifensulfuron, tribenuron, triflusulfuron, clopyrasulfuron, and pyrazasulfuron; b) sulfonamides such as",
flumetsulam (DE498); and c) imidazolinones such as imazaquin, imazamethabenz, imazapyr, imazmethapyr and Imazethapyr. Further docuemnt D2",
discloses additives for use in the compositions include but are not limited to compatibilizing agents, antifoam agents, sequestering agents, neutralizing",
agents and buffers, corrosion inhibitors, dyes, odorants, spreading agents, penetration aids, sticking agents, dispersing agents, thickening agents,",
freezing point depressants, antimicrobial agents, and the like. (Abstract, claims 1-28, para 0005-0006, 0131, 0142, whole document). Document D3",
discloses a syngergistic herbicidal composition comprising three herbicidal active ingredients, wherein the herbicidal active ingredients consist of",
bentazon-sodium, an ALS inhibitor, and an ACCase inhibitor. Document D3 also discloses the ALS inhibitor is penoxsulam, bispyribac-sodium,",
azimsulfuron, bensulfuronmethyl, chloransulam, cinosulfuron, diclosulam, ethoxysulfuron, flazasulfuron, florasulam, flumetsulam, halosulfuron-methyl,",
imazamox, imazethapyr, imazosulfuron, iofensulfuron, metazosulfuron, metsulfuron-methyl, orthosulfamuron, propyrisulfuron, pyrazosulfuron-ethyl,",
pyribenzoxim, pyriftalid, pyriminobac-methyl, pyrimisulfan, pyroxsulam or triafamone. Further docuemnt D3 discloses the ACCase inhibitor is",
cyhalofop- butyl, fenoxaprop-Pethyl, clodinafop-propyrgyl, diclofop-methyl, fluazifop-P-butyl, haloxyfopmethyl, propaquizafop, quizalofop-Pethyl,",
clethodim, cycloxydim, profoxydim, sethoxydim, tepraloxydim, tralkoxydim or pinoxaden (Abstract, claims 1- 15 and 22, whole document). Document",
D4 discloses a herbicidal composition comprising a herbicidally acceptable carrier and/or surface active agent and, as active ingredient, a",
synergistically effective amount of,
(1) at least one 2-phenyl-4- (hetero-) aryloxypyrimidine of formula I,",
(2) at least one additional herbicidal compound, which is active against broadleaved weeds and/or annual grasses; and/ or (3) at least one additional",
safening compound. Document D4 also discloses additional herbicidal compound (2) is selected from a) a lipid biosnthesis inhibitor: chlorazifop,",
clodinafop, clofop, cyhalofop, diclofop, fenoxaprop, fenoxaprop-P, fenthiaprop, fluazifop, fluazifop- P, haloxyfop, haloxyfop-P, isoxapyrifop,",
propaquizafop, quizalofop, quizalofop-P, trifop, alloxydim, butroxydim, clethodim, cloproxydim, cycloxydi , profoxydim, sethoxydim, tepraloxydim,",
tralkoxydim, butylate, cycloate, di-allate, dimepiperate, EPTC, esprocarb, ethiolate, isopolinate, methiobencarb, molinate, orbencarb, pebulate,",
prosulfocarb, sulfallate, thiobencarb, tiocarbazil, tri-allate, vernolate, bensulide, benfuserate or ethofumesate; b) an acetolactate synthase inhibitor: a",
sulfonyl urea type herbicide: amidosulfuron, azimsulfuron, bensulfuron, chlorimuron, chlorsulfuron, cinosulfuron, cyclosulfamuron, ethametsulfuron,",
ethoxysulfuron, flazasulfuron, flupyrsulfuron, foramsulfuron, halosulfuron, imazosulfuron, iodosulfuron, mesosulfuron, metsulfuron, nicosulfuron,",
oxasulfuron, primisulfuron, prosulfuron, pyrazosulfuron, rimsulfuron, sulfometuron, sulfosulfuron, thifensulfuron, triasulfuron, tribenuron, trifloxysulfuron,",
triflusulfuron, tritosulfuron, propoxycarbazon or flucarbazon; a sulfonamide type herbicide: chloransulam, diclosulam, florasulam, flumetsulam,",
metosulam or penoxsulam; an imidazolinone type herbicide: imazamethabenz , imazamox, imazapic, imazapyr, imazaquin or imazethapyr; a pyrimidyl",
ether: bispyribac, pyribenzoxim, pyriftalid, pyrithiobac or pyriminobac (Abstract, claims 1-19, whole document). Document D5 discloses a herbicidal",
composition comprising: a) a herbicide compound Awhich is selected from topramezone, the salts and esters, carbonates or thiocarbonates thereof;",
and b) a second herbicide compound B which is pinoxaden; and c) a herbicide safener compound C, which is selected from cloquintocet, a salt or an",
ester thereof; wherein the weight ratio of the herbicide compound A and the herbicide compound B is from 1:1 to 1:15 and the weight ratio of the,
herbicide compound A and the herbicide safener compound C is from 4:1 to 1:7, wherein the herbicide compound A is calculated as topramezone.",
Document D5 also discloses composition further comprises at least one herbicide compound D which is selected from the group consisting of D.1,
synthetic lipid biosynthesis inhibitors;,
D.2 acetolactate synthase inhibitors; D.3 photosynthesis inhibitors;,
D.4 protoporphyrinogen-IX-oxidase inhibitors; D.5 bleacher herbicides; and D.6 auxinic herbicides. Further document D5 discloses lipid biosynthesis,
inhibitor selected from the group consisting of clodinafop, diclofop, fenoxaprop, fenoxaprop-P and tralkoxydim and, where applicable, a salt or an ester",
thereof and acetolactate synthase inhibitor selected from the group consisting of amidosulfuron, chlorsulfuron, florasulam, flucarbazone,",
flucetosulfuron, flupyrsulfuron, imazamox, iodosulfuron, mesosulfuron-methyl, metazosulfuron, metsulfuronmethyl, propoxycarbazone, prosulfuron,",
pyrimisulfan, pyroxsulam, sulfosulfuron, thiencarbazone, thifensulfuronmethyl, triasulfuron, tribenuron-methyl, tritosulfuron and, where applicable, a salt",
or an ester thereof (Abstract, claims 1-15, whole document). BY analysis of the above cited documents it appears that the combination of the",
technical teaching as disclosed in D1- D5 is suggested to the skilled person in order to provide claimed herbicidal composition, without any technical",
advancement or economic significance over the prior art. Hence, in view of the above cited documents the present claims 1-15 lack inventive step &",
fails to meet the requirement of section 2(1) (j)(a) of the Patents Act, 1970.",
Non-Patentability u/s 3,
Referring to Non patentability, the reply submissions are unacceptable as claims 1-15 defines a mere admixture resulting only in the aggregation of the",
properties of the components thereof. It is not clear if the combined agents act together to provide a technical effect that is greater than just the sum,
of the two or more agents alone, or whether the combination is in fact a mere juxtaposition with no interaction of the agents. Hence Claims 1-15 are",
fall u/s 3(e) of the Patents act, 1970.",
Looking at the FER and the hearing notice, it is evident that while FER contained the objections on the grounds of lack of novelty, lack of inventive",
step and non-patentability under section 3(e) of the Patents Act, 1970, the hearing notice didn’t mention about the objection on the grounds of",
novelty. It is thus apparent that the respondent was convinced by the submissions of the appellant in response to FER and hence dropped the objection,
on the grounds of novelty.,
Now let’s look at the order of the respondent:,
Reasoning / Analysis: Novelty and inventive steps,
The present invention relates to a synergistic herbicidal composition, comprising: (a) a aryloxyphenoxypropionic ester; (b) two acetolactate synthase",
(ALS) inhibitors; and (c) additives, The ingredients used aryloxyphenoxypropionic ester; (acetolactate synthase (ALS) inhibitors; additives, which is",
already known in prior cited Documents D1-D5.,
Document D1 also discloses composition further comprises aryloxyphenoxypropionic ester such as fenoxaprop-P-ethyl, sulfonamide such as",
flumetsulam and an imidazolinone type such as imazapyr, imazapyr-isopropylammonium, imazethapyr, imazethapyr-ammonium, imazaquin, imazaquin-",
ammonium, imazamox, imazamox-ammonium, imazamethabenz, imazamethabenz-methyl or imazapic (Abstract, claim 1, para 0003, 0041-0042, whole",
document). a herbicidal composition comprising a herbicidally effective amount of (a) a compound of the formula (I) or an agriculturally acceptable,
salt or ester thereof and (b) a synthetic auxin herbicide.,
Document D2 also discloses some of the herbicides that can be employed in conjunction with the composition include Fenoxapropp- ethyl, ALS",
inhibitors. Claims 1 and its dependent claims in view of the prior art documents lacks novelty and inventive step. It is submitted that none of the,
dependent claims provide any novel or inventive features to the present invention. The claims of the present invention relates to a,
aryloxyphenoxypropionic ester; (acetolactate synthase (ALS) inhibitors; additives, which is known in the art.",
Therefore, claim 1-15 does not claim a product that is novel and unobvious. It is further submitted that:",
a) It is routine practice in the industry to prepare formulation according to the need in the field of agriculture;,
b) Such formulations are made by combining with the herbicides, formulation auxiliaries such as surfactants, safener, wetting agent, dispersing agent",
etc., and",
c) The process for preparing such formulations by mixing with the herbicides, formulation auxiliaries is a routine task for a person skilled in the art.",
The present invention is obvious and lacks any inventive step under section 2(1)(j) of the Patent Act 1970 as amended in 2005.,
Section 3(e):,
The agent for the Applicant has failed to demonstrate any synergistic effect of the herbicides composition in the specification. It is clear that the,
subject matter of the present application is clearly not an invention in accordance with Section 3(e) of the Indian Patents Act, 1970.",
Conclusion:,
The claims of the present invention are lacking in inventive steps under section 2(1)(j) and fall under section 3(e) of the Patent Act 1970 as amended,
in 2005. Therefore, I believe that the claimed subject matter is not inventive under section 2(1)(j) and fall section 3(e) of the ‘Act . Therefore, in",
view of the outstanding objections as above, this application no.2668/DEL/2015 is hereby refused under section 15 of the Patents Act.",
We notice that while the operating portion of the refusal order of respondent relies only on the objections on the grounds of lack of inventive step,
and non-patentability under section 3(e) in conformity with hearing notice; he also mentions under his analysis that “Therefore, claim 1-15 does not",
claims a product that is novel and unobvious. Now, this is a situation wherein the hearing notice doesn’t carry the objection on novelty and the",
respondent in his order observes that the claimed invention lacks both novelty and inventive step. This is not only confusing but against the tenet of,
natural justice. The respondent is expected to exercise due caution in future and bring in further clarity in his decisions.,
Notwithstanding the observation of the respondent with regard to novelty without any earlier notice, the appellant has submitted their arguments on",
the issue. We have considered the arguments and submissions of the learned counsel of the appellant wherein he emphasized that the subject matter,
of the invention is a novel combination with the features(s) as defined in claim 1 as follows:,
A synergistic herbicidal composition, comprising:",
a) a aryloxyphenoxypropionic ester;,
b) two acetolactate synthase (ALS) inhibitors; and,
c) additives, wherein aryloxyphenoxypropinoic ester and two acetolactate synthase are present in a ratio ranging from 1.00:1.77 to 1.00:1.82.",
We have considered the submission of the learned counsel and found that none of the cited prior arts define all the three feature(s) as claimed in,
the instant application. Hence, the question of lack of novelty, even if observed by the respondent in his order, cannot be sustained.",
Further, it is observed that the respondent mainly relied on the documents i.e. D1 and D2, for lack of inventive step. While doing so he has made",
statements that the invention is a result of routine practice in the industry wherein such formulations are made by combining with the herbicides and,
the process for preparing such formulations by mixing with the herbicides, formulation auxiliaries is a routine task for a person skilled in the art. This is",
a subjective assessment wherein the respondent airs his own opinion without having any reasonable basis for assessment of inventive step. The,
“obviousness†must be strictly and objectively Judged Manual of Patent office Practice and Procedure. The detailed procedures are determination,
of inventive step based on numerous judicial pronouncements and practices are mentioned therein the Manual of Patent Office Practice and,
Procedure ibid and this Board also has emphasized it, in various orders. One such recent order elaborately covers the determination of inventive step",
in PHARMACYCLICS, LLC OA/46/2020/PT/DEL and we are not inclined to include it here for the sake of brevity. The findings on inventive step",
are, therefore, not sustainable, as there is sufficient reason for us to believe that the invention is not the routine practice of mere admixing the",
ingredients.,
We have reviewed the complete specification and found that the appellant have been able to show the synergistic effects in table 4, 5,7 and 8",
therein as shown below:,
The Manual of Patent office Practice and Procedure Supra 1 holds on the issue of non-patentability under section 3(e ) as under:,
Section 3 (e): A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for,
producing such substance is not an invention.,
“An admixture resulting in synergistic properties is not considered as mere admixture. Hence, substances like soap, detergent, lubricants, may be",
considered as patentable.,
A mere aggregation of features must be distinguished from a combination invention. The existence of a combination invention requires that the,
relationship between the features or groups of features be one of functional reciprocity or that they show a combinative effect beyond the sum of their,
individual effects. The features should be functionally linked together which is the actual characteristic of a combination invention.â€,
Further, the Guidelines for examination of patent applications in the field of Pharmaceuticals Available at https://www.ipindia.gov.in/guidelines-",
patents.htm holds that Section 3(e) of the Act reflects the legislative intent on the law of patenting of combination inventions in the field of chemical as,
well as biotechnological sciences. It goes on to explain that However, in a composition if the functional interaction between the features achieves a",
combined technical effect which is greater than the sum of the technical effects of the individual features, it indicates that such a composition is more",
than a mere aggregation of the features.,
Therefore, on finding that the complete specification has been successfully able to exhibit the synergistic effect of the invention, we are inclined to",
accept the submission of the appellant that the invention does not attract the provisions of section 3(e) of the Patents Act, 1970.",
We, therefore, set aside the order of the respondent dated 13/05/2020 and direct him to grant the patent within 3 weeks of the date of issuance of",
this order.,
Appeal is allowed. No cost.,