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HIGH COURT OF DELHI
C.A.(COMM.IPD-PAT) 18/2021 ISCHEMIX LLC ..... Appellant
Through: Mr. Ankush Verma, Mr. Debashish Banerjee, Mr. Vineet Rohilla, Mr. Rohit Rangi, Mr. Venkatesh Naik and Mr. Tanveer Malhotra, Advs.
Through: Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar
Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advs.
JUDGMENT
27.03.2023
1. The impugned order dated 3rd June 2021 rejects Application No. No.4380/DELNP/2013, filed by the appellant seeking registration of a patent in respect of pharmaceutical products stated to be useful for treating ischemia and other related conditions.
2. Mr. Ankush Verma, learned Counsel for the appellant, submits that the impugned order has been passed by applying Section 3(d) of the Patents Act to prior arts denoted as D-5/D-6, treating them as the closest prior arts to the invention forming subject matter of the application of the appellant. However, he submits, the notice of hearing dated 16th January 2020 did not cite prior art documents D- 5/D-6. As such, he submits that the impugned order could not have relied on the prior art documents D-5/D-6 to the prejudice of the appellant.
3. In its order dated 31st March 2022, this Court has noted the fact that the appellant was not claiming any monopoly in respect of the structural formula N-(R)-lipoylaminoethylphosphonic acid, but was restricting the claim to the enantiomer/isomer as described in Claim 1.
4. This Court, therefore, permitted the appellant to file an affidavit rebutting the prior art documents D-5/D-6 and also permitted the respondent-Controller to file a short note on this aspect.
5. The said directions have been complied with. However, learned Counsel for the parties are ad idem that, as the issue is extremely technical in nature, it would be appropriate that the appellant be given an opportunity to rebut the cited prior art documents D-5/D-6, firstly before the Controller of Patents before the matter is examined by this Court, should the need arise.
6. The suggestion is wholesome and merits acceptance.
7. As such, the impugned order 3rd June 2021 is quashed and set aside. Application No.4380/DELNP/2013 dated 16th May 2013 stands remanded to the Controller of Patents for de novo consideration. The matter would be examined after due compliance with the principles of natural justice and fair play and following the procedure in that regard as contained in the Patents Act, and Patents Rules.
8. The appeal stands allowed to the aforesaid extent. As the application is of 2013, the Controller, or the Officer in the office of Controller, who is assigned the task of de novo adjudication, is requested to proceed as expeditiously as possible and to make all efforts to complete the proceedings and render a decision within a period of six months from today.
9. Let the order be uploaded on the website of this Court within 24 hours.
C.HARI SHANKAR, J MARCH 27, 2023