Patents Controller Order On Dimminaco Vaccine Quashed

The Calcutta High Court has quashed an order passed by the controller of patents & designs rejecting an application for patent filed by Dimminaco AG, a Swiss company.

In the patent application, the Swiss firm sought patent on an invention relating to a process for the preparation of infectious bursitis vaccine.

The application was examined by the patent office and gave a finding that what is claimed in the application does not constitute an invention under the Patent Act. The Swiss company moved in the High Court challenging the order of rejection.

Justice Asok Kumar Ganguly, in a recent judgment, quashed the order of the controller of patents and designs passed on December 27, 1999, and directed the authority concerned to reconsider the Swiss company's application for patent.

The judge observed: "The application for patent has been refused mainly on the ground that the end-product contains a living organism. Therefore, it has been held that it cannot be called a manner of manufacture".

The court held that the examiner claimed that the specification does not constitute an invention.

But reasons for such a finding has not been given. It appears that, while giving his report, the examiner has to act in a quasi-judicial manner, and it is well settled as a proposition of law that when an authority, acting in a quasi-judicial manner, passes an order which affects the rights of the parties, it should be a reasoned one, the court observed.

The judge also held: "The controller erred himself in law by holding that merely because the end product contains a live virus, the process involved in bringing out the end product is not an invention".

Justice Ganguly in his order said: "The order passed by the controller that the claim process does not lead to the manufacture of a substance also cannot be accepted. The court observed that since the claim process for patent leads to a vendible product, it is certainly a substance after going through the process of manufacture".