IPAB revokes patent of US-based Kibow Biotech

The Intellectual Property Appellate Board (IPAB) has revoked a patent of US-based biotech firm Kibow Biotech Inc in India, titled ‘Prebiotic and Probiotic Compositions and Methods for their Use in Gut-Based Therapies’, finding that the inve- ntion claimed is obvious. The order was on a revocation application filed by Gujarat-based La Renon Health Care Pvt Ltd.

The revocation petition was filed by the Indian firm after it was challenged by Kibow Biotech in the Madras High Court, alleging infringement of the impugned patent No 205478, in order to curb the competition in the market from the domestic firm who would also be the major competitor for the company.

Pending the suit, La Renon Health Care filed the revocation petition with the IPAB, alleging the US firm has made a claim for pharma composition and also for a method of treatment in the same application.

An order by IPAB Vice Chairman S Usha and Technical Member (Patents) D P S Parmar observed that the pharmaceutical composition containing five integers is not a new product, nor is the mixing of the products advance any technical effect over the existing prior art. Thus, it makes the invention obvious to a person skilled in the art.

“The mixing of the five integers is a mere admixture. There is no invention. The description gives an account of kidney failure and talks of solute removal in the gut in nitro studies does not describe the process of mixing the pharma composition as a whole,” it added.

There is nothing new or is there any technical advancement in the mixing of these integers and therefore, is not an invention,” it added.

“We think the original revocation application deserves to be allowed and the patent granted be revoked,” said the order.

The Gujarat-based firm argued that two seperate set of claims pertaining to two different matters cannot be the subject of a single application for the grant of patent, it argued. The title of the impugned patent application given in the patent certificate mentions it as “A process of Making Pharmaceutical Composition” while the complete specification mentions it as “Prebiotic and Probiotic Compositions and Methods for their use in Gut-based Therapies”. The patent has been obtained on false representation, it said.

In the complete specification the field of invention has been stated as relating to pharmaceutical compositions and methods of using these compositions to treat renal, hepatic and gastrointestinal diseases by eliminating toxins and other metabolic waste products and reducing or retarding undesirable bacterial over growth. Some elements of the patent are non-optional while others are optional, it said.

Kibow Biotech said it is a 14-year-old biotechnology company into development and commercialisation of scientifically-formulated and clinically-tested probiotic dietary supplements and specialises in probiotic supplements for maintaining kidney health and boosting the immunity of the geriatric population.

It argued that the Indian firm has not made out their case on any one ground, but has rather loosely relied on all grounds collectively for the basis of the revocation application and has merely made blanket assertions throughout  without substantiating any one of the assertions. It (La Renon Health Care) has not proved that the patent method is anticipated in any one of the documents cited by it as prior art or is it obvious to a person skilled in art.  The applicant has not demonstrated as to how the patent method does not constitute an invention and pleadings are therefore completely groundless.

Kibow Biotech’s preliminary objection was that the revocation application has not been filed in the manner and format prescribed under Rule 3 of the IPAB (Patents Procedure) Rules, 2010.