Sri. Manjunatha M. S Vs State By Arsikere Town Police

The case involves Sri Manjunatha M.S., proprietor of Sri Sathya Sai Baba Oil Mill, who filed a petition under Section 482 of the Criminal Procedure Code seeking to set aside orders from previous proceedings related to trademark infringement.

The petitioner claims that the initial complaint against him was wrongly registered under the Copyright Act, 1967, for offenses that should have been under the Trade Mark Act, 1999. He argues that this misregistration was intentional, to bypass the requirements of the Trade Mark Act, which mandates obtaining the Registrar of Trade Marks' opinion before conducting a search and seizure. The petitioner contends that the entire criminal process was an abuse of law and should be quashed.

The respondents, represented by the State and Sri K.R. Nagendra, proprietor of Shankar Industries, argue that the complaint was correctly filed to protect against trademark infringement and that any irregularities in the process do not warrant quashing the proceedings. They rely on precedents that suggest non-compliance with the Trade Mark Act's proviso is an irregularity that does not lead to a miscarriage of justice.

The court found that there is no embargo on laying a charge sheet for offenses under the Trade Mark Act, even if the initial complaint was registered under the Copyright Act. However, the court noted that if the initial registration was malafide, it could intervene under Section 482 of the Cr.P.C.

The court also addressed the non-compliance with the proviso to Subsection (4) of Section 115 of the Trade Mark Act, which requires obtaining the Registrar's opinion before a search and seizure. The court, citing various high court decisions, concluded that such non-compliance is an irregularity that does not go to the root of the investigation and can be addressed during the trial if it causes a failure of justice. In light of these findings, the court dismissed the petition, stating that it is not required to exercise its powers under Section 482 of the Cr.P.C

Case Citation: Sri. Manjunatha M. S Vs State By Arsikere Town Police: 08.07.2024/CRL.P. 1620 of 2017 /2024:KHC:25896: Karnataka High Court/Suraj Govind Raj. H.J.

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Written By: Advocate Ajay Amitabh Suman
IP Adjutor [Patent and Trademark Attorney]

Unisn Health Check Up Vs Unison Pharmaceuticals

This is a judgment from the High Court of Gujarat at Ahmedabad, dated July 16, 2024, in a civil appeal filed by UNISN HEALTH CHECK UP AND DIAGNOSTICS LLP against UNISON PHARMACEUTICALS PVT. LTD. The appeal challenges an interim injunction granted by the Commercial Court, Ahmedabad, which restrained the appellant from using the trade mark 'UniSN' on the grounds of alleged infringement of the respondent's registered trade mark 'UNISON'.

The respondent, UNISON PHARMACEUTICALS, has been using the trade mark 'UNISON' since 1980 and registered it in 2003 and 2012 for goods in Class 5 and Class 10. The appellant, UNISN HEALTH CHECK UP AND DIAGNOSTICS LLP, started using the trade mark 'UniSN' in 2021 for health check-up and diagnostic services. The trial court granted the injunction based on the plaintiff's long-standing use and registration of the 'UNISON' mark, the phonetic and visual similarities between 'UNISON' and 'UniSN', and the likelihood of confusion among the public.

The appellant argued that the trade marks are not deceptively similar, as 'UNISON' is registered in Class 5 and Class 10 for pharmaceutical goods, while 'UniSN' is used in Class 44 for health services. The appellant also pointed out that the plaintiff's trade mark is a device mark with additional elements, and the word 'UNISON' cannot be claimed exclusively.

The High Court, however, found that the trial court erred in granting the injunction. The court noted that the plaintiff's mark is a composite device mark, and the word 'UNISON' is part of a larger design. The court applied both visual and phonetic tests and found no convincing similarity between the two marks. The court also considered the nature of the goods and services provided by both parties and the class of customers likely to purchase them, concluding that there is no likelihood of confusion.

The High Court dismissed the interim injunction application and set aside the trial court's judgment, finding that the plaintiff failed to make a prima facie case for the injunction.

Case Citation: Unisn Health Check Up Vs Unison Pharmaceuticals: 16.07.2024/AO 98 of 2024/GHC/Sunita Aggarwal and Pranav Trivedi H.J.

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Written By: Advocate Ajay Amitabh Suman
IP Adjutor [Patent and Trademark Attorney]

Husenali Anwarali Charaniya vs Hasmukhbhai Bhagvanbhai Patel

The case of Husenali Anwarali Charaniya Vs. Hasmukhbhai Bhagvanbhai Patel, heard on 24 June 2024 in the High Court of Gujarat at Ahmedabad, involves a dispute over the use of a trademark and copyrighted label for betel nut products. Charaniya, the plaintiff, alleges that Patel, the defendant, is using a deceptively similar mark and label, "Kranti Kaka," which infringes on Charaniya's trademark "Kanti Kaka" and copyrighted label.

The plaintiff, Charaniya, has been in the business of manufacturing and marketing betel nut products since 2016 and has established goodwill and reputation in the market. He has a registered copyright for the label and has applied for a trademark. The defendant, Patel, is also in the same business and has been using a mark and label that the plaintiff claims is confusingly similar to his own. The District Court, in an order dated 09.05.2024, granted an interim injunction against Patel, restraining him from using the deceptively similar mark and label until the final disposal of the suit. Patel appealed this decision, arguing that the plaintiff had not established exclusive rights to the mark and that there was a delay in filing the suit.

The High Court, in its oral order, upheld the District Court's decision. It found that the plaintiff had established a prima facie case of passing off, as the defendant's mark and label were deceptively similar to the plaintiff's, which could lead to confusion among consumers. The court also noted that the plaintiff had demonstrated goodwill and reputation in the market, and the defendant had not shown prior use of the mark or label. The High Court relied on Supreme Court decisions that established the principles for granting injunctions in cases of passing off, stating that the appellate court should not interfere with the trial court's discretion unless it was exercised arbitrarily or capriciously.

The High Court found that the District Court had reasonably exercised its discretion and that no interference was necessary. The High Court also addressed the issue of delay in filing the suit, stating that mere delay does not defeat the grant of an injunction, especially if the adoption of the mark appears dishonest. The High Court dismissed the appeal and upheld the interim injunction in favor of Charaniya. In summary, the High Court of Gujarat at Ahmedabad, in its order dated 24/06/2024, dismissed the appeal by Hasmukhbhai Bhagvanbhai Patel against the interim injunction granted by the District Court.

The court found that the plaintiff, Husenali Anwarali Charaniya, had established a prima facie case of passing off and that the defendant's use of a deceptively similar mark and label could lead to confusion in the market. The High Court upheld the District Court's decision to grant an interim injunction, finding that the District Court had exercised its discretion reasonably and judiciously.

Case Citation: Husenali Anwarali Charaniya vs Hasmukhbhai Bhagvanbhai Patel:24.06.2024:[Appeal from Order 94 of 2024]: 2024 GUJHC 33167:Gujarat High Court: Nikhil S Kariel.H. J.

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Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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A.P. Møller Mærsk A/S & Anr Vs Maersk Pharma Private Limited

In this case of A.P. Møller Mærsk A/S & Anr v. Maersk Pharma Private Limited, the plaintiffs, A.P. Møller Mærsk A/S, and its associated entities, brought a legal action before the High Court of Delhi, asserting claims of trademark infringement and passing off against the defendant, Maersk Pharma Private Limited. The plaintiffs argued that the defendant's use of the trade name and trademark 'Maersk' was unauthorized and amounted to an infringement of their established and well-known trademark 'MAERSK'. They contended that this unauthorized use by the defendant led to a likelihood of confusion among the public, causing people to mistakenly associate the defendant's products with the plaintiffs' reputable brand.

The court examined the matter thoroughly, focusing on the similarity between the trade names and trademarks of the parties involved. It was observed that the defendant's trade name and trademark bore a significant resemblance to the plaintiffs' trademark 'MAERSK'. The court noted that 'MAERSK' is a well-known and distinctive trademark associated with the plaintiffs' long-standing and reputable business in the shipping and logistics industry. The court found that the use of an identical or deceptively similar trade name and trademark by the defendant in the pharmaceutical sector was likely to cause confusion and mislead consumers into believing that there was a connection or association with the plaintiffs.

Given the plaintiffs' strong prima facie case and the potential for irreparable harm to their business and reputation, the court granted an ad interim ex-parte injunction in favor of the plaintiffs. This injunction restrained the defendant from using the impugned trade name and trademark 'Maersk' in any form, including on products, packaging, promotional materials, and business communications. The court also directed the defendant to cease all activities related to the manufacture, sale, distribution, and promotion of products bearing the disputed trade name and trademark. 

Case Citation: A.P. Møller Mærsk A/S & Anr Vs Maersk Pharma Private Limited :09.07.2024:[CS(COMM) 555/2024]:Delhi High Court:Saurabh Banerjee.H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Jupiter Life Line Hospitals Limited Vs Jupiter Hospital

Jupiter Life Line Hospitals Limited filed an Interim Application for ex-parte ad-interim relief against Jupiter Hospital & Institute of Vascular Surgery. The plaintiff claimed to have secured registrations for the trademark "JUPITER" and accused the defendant of using similar trademarks and websites. The court granted an ex-parte ad-interim order, restraining the defendant from infringing the plaintiff's trademark. 

The plaintiff alleged that the defendant's use of the trademark "JUPITER" and related websites caused confusion and deception among the public, leading to infringement of the plaintiff's registered trademarks. The court found merit in the plaintiff's contention and granted the injunction, considering the likelihood of confusion and the plaintiff's potential irreparable loss if the relief was refused. The court ordered the plaintiff to serve notice of the order and the next hearing date to the defendant within a week.

In its application, Jupiter Life Line Hospitals asserted that it holds registrations for the "JUPITER" trademark, a mark integral to its brand identity and reputation in the healthcare sector. The plaintiff accused the defendant, Jupiter Hospital & Institute of Vascular Surgery, of using a similar trademark and related websites, which it argued created confusion and deception among the public. Such actions, the plaintiff contended, amounted to trademark infringement, diluting its brand value and misleading consumers.

In trademark law, the concept of "likelihood of confusion" is pivotal. It refers to the probability that consumers might mistakenly believe that there is a connection between the two parties' goods or services due to the similarity in their trademarks. In this case, the court was convinced that such a likelihood of confusion existed, given the identical nature of the trademarks in question and the overlapping business domains of the two parties. This confusion, the court noted, could lead to significant damage to the plaintiff's brand and goodwill, emphasizing the need for immediate relief.

The court, after considering the plaintiff's arguments and evidence, found sufficient merit in the claims to warrant immediate judicial intervention. An ex-parte ad-interim order was granted, restraining the defendant from using the "JUPITER" trademark and any related websites that could further propagate the confusion. The court acknowledged that monetary compensation alone might not suffice to address these damages, thereby justifying the need for an immediate injunction to prevent further harm.

Case Citation: Jupiter Life Line Hospitals Limited Vs Jupiter Hospital :09.07.2024:[COM IPR SUIT (L) NO.20025 OF 2024]:Bombay High Court:R.I.Chagla.H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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The Zero Brand Zone Pvt. Ltd. Vs Controller of Patent:

The Civil Miscellaneous Appeal under Section 117-A of the Patents Act, 1970, sought to overturn the rejection of a patent application for an "Eco-friendly lamp made up of composition based on panchagavya with the combination of leaves used in traditional herbal medicine."

 The appellant's counsel argued that the invention met the requirements of Section 2(1)(j) of the Patents Act and that the prior art cited was not relevant, as it pertained to mosquito repellents and not lamps. 

The respondents argued that the invention was liable to rejection due to prior art documents D1 to D3, which they claimed contained most of the ingredients used in the invention. The appellant's counsel countered by emphasizing the uniqueness of their invention's composition and process, and its use of specific proportions of ingredients. 

The prior art documents D1 to D3 played a crucial role in the court's decision to reject the patent application. These documents are referenced to establish whether the claimed invention would be obvious to a person skilled in the art, a key consideration in determining the patentability of an invention under Section 2(1)(j) and Section 2(1)(ja) of the Patents Act, 1970. D1, published on 10.06.2017, disclosed a composition for a herbal mosquito repellent made from cow dung, cow milk, cow ghee, neem, and peepal tree barks. Although it did not directly relate to a lamp, the court considered the commonality of some of the ingredients used in D1 with those in the claimed invention. The court found that D1 alone did not provide a coherent thread leading to the claimed invention, but it is part of the body of knowledge that a person skilled in the art would consider. D2, authored by Mandavgane and published on 11.04.2005, also related to a herbal mosquito repellent composition. It contained cow dung and neem, which are ingredients in the claimed invention. 

However, D2 did not include all the ingredients of the claimed invention. The court considered D2 as part of the prior art that a person skilled in the art would be aware of. D3 disclosed the production of eco-friendly lamps/diyas from cow dung, ghee, and essential oils. It was the most relevant prior art as it directly related to the production of lamps using natural ingredients. The court found that D3, combined with the knowledge from D1 and D2, would make the claimed invention obvious to a person skilled in the art. The court reasoned that once the ingredients are part of traditional knowledge, working out the optimum ranges and proportions is a matter of routine experimentation and cannot be construed as inventive.

The court concluded that the invention was not patentable under Section 3(p) and that it would be obvious to a person skilled in the art based on the cited prior art and common general knowledge. Therefore, the appeal was dismissed without any order as to costs, and the patent application remained rejected.

Case Citation: The Zero Brand Zone Pvt. Ltd. Vs Controller of Patent:05.07.2024:([OA/32/2020/PT/CHN]:Madras High Court:Senthilkumar Ramamoorthy, H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Quality Services And Solutions Private Ltd. Vs Qss Inspection AndTesting Private Limited

The case before the High Court of Judicature at Bombay involves a dispute between Quality Services & Solutions Private Limited and QSS Inspection and Testing Private Limited over alleged infringement of trademark and copyright, as well as passing off. 

The plaintiffs, Quality Services & Solutions Private Limited, claim that they have used the trademark "Quality Services and Solutions" (QSS) since 1999 for their inspection, testing, and certification services across India. They allege that the defendants, who were initially franchisees, have unlawfully registered a similar trademark and have been using it in a manner that could cause confusion among consumers. 

The plaintiffs, QSS, and the defendants, QSS Inspection and Testing Private Limited, have a history and relationship marked by an initial franchise agreement. The plaintiffs, QSS, are a leading multinational company in inspection, testing, and certification, while the defendants were initially franchisees operating under the name Quality Services and Solutions (Gujarat). 

A Memorandum of Understanding (MoU) was executed between the plaintiff and the defendant franchisee on March 10, 2004, granting limited rights to the franchisee to use the plaintiff's trademark in relation to their services, operating on a commission basis. Over time, changes occurred in the management and ownership of both parties. Defendant No. 2, who started as an employee of QSS, became the Managing Director of QSS in 2019. However, after a change in the management of QSS, following the acquisition of a majority shareholding by Plaintiff Nos. 2 and 3, Defendant No. 2 ceased to be a Director of QSS.

 The plaintiffs allege that the defendants, while still franchisees, filed and registered a similar trademark to that of QSS, which was discovered when QSS attempted to register their logo, leading to a legal notice being sent to the defendants to cease and desist from using the QSS mark.

 The defendants argue that the MoU between the parties was abandoned, and they have been using the trademark with the plaintiffs' knowledge and consent. They contend that the plaintiffs have not objected to their use of the trademark until recently, and thus, the plaintiffs' claims are barred by acquiescence and waiver. 

The court finds that the plaintiffs have a strong prima facie case for urgent interim relief, noting that the defendants' use of the trademark was permissive under the MoU and that the defendants have not established acquiescence or abandonment of the MoU. 

The court is particularly concerned about the actions of Defendant No. 2, who was the Managing Director of the plaintiff company when the allegedly infringing trademark was registered. The court grants ad-interim relief to the plaintiffs, restraining the defendants from using the plaintiffs' trademark and copyright.

Case Citation: Quality Services And Solutions Private Ltd. Vs Qss Inspection And

Testing Private Limited :09.07.2024:[COMM IP (L) NO. 13174 OF 2024:Bombay High Court:N.J.Jamadar H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Dr. Reddys Laboratories Limited Versus Rebanta Healthcare Pvt Ltd And Anr:

In this case involving trademark rights and potential public health implications, Dr. Reddys Laboratories Limited, a leading pharmaceutical company, asserted its ownership of the registered trademark "REBAHEAL." This trademark is specifically used for pharmaceutical products aimed at treating peptic and mouth ulcers. Since its introduction in June 2023, the 'REBAHEAL' trademark has garnered significant goodwill and reputation within the market. The brand has become widely recognized by consumers, doctors, and other healthcare professionals, firmly establishing itself as exclusively linked to Dr. Reddys Laboratories' products.

The 'REBAHEAL' trademark is a coined term, meaning it was created specifically for branding purposes and lacks any pre-existing meaning. This characteristic renders the trademark inherently distinctive, allowing it to serve as a unique identifier for the company's products. The distinctiveness of the 'REBAHEAL' mark underscores its value and the importance of protecting it from potential infringement.

The conflict arose when the defendants began using the identical mark 'REBAHEAL' for their products, which, although intended for different medical conditions, posed a significant threat to the plaintiff's trademark rights. Dr. Reddys Laboratories alleged that the defendants' use of the identical mark constituted trademark infringement and passing off. Passing off occurs when one party misrepresents its goods or services as being those of another, thereby causing confusion or deception among consumers.

Recognizing the potential for confusion and the serious health risks involved, the court took decisive action to protect the public and uphold the plaintiff's trademark rights. The court restrained the defendants from using the mark "REBAHEAL" or any deceptively similar mark that could cause confusion or deception among the public, doctors, and chemists. This legal injunction served not only to protect Dr. Reddys Laboratories' established goodwill and market reputation but also to safeguard public health by ensuring that pharmaceutical products are correctly identified and used as intended.

Case Citation: Dr. Reddys Laboratories Limited Versus Rebanta Healthcare Pvt Ltd And Anr:09.07.2024:(CS(COMM) 553/2024:Delhi High Court:Mini Pushkarna, H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Loreal Vs Rajesh Kumar Taneja

The High Court of Delhi delivered a judgment on 15.07.2024 in the case of Loreal India Pvt Ltd versus Rajesh Kumar Taneja Trading as Innovative Derma Care & Anr. The appellant sought cancellation of the trademark 'CLARIWASH' registered in favor of respondent no.1, claiming its predecessor had adopted 'CLARI' formative trademarks. The court dismissed the application, stating the impugned trademark was not deceptively similar to the appellant's trademarks and that the registration was not required to be cancelled due to procedural errors.

The court found that the impugned trademark was not deceptively similar to the appellant's trademarks and that the registration was not required to be cancelled due to procedural errors. The court also noted that the appellant's predecessor had full opportunity to oppose the registration of the impugned trademark at the material time but had taken no steps to do so. The court dismissed the appeal and pending applications.

The High Court of Delhi dismissed the appellant's application seeking cancellation of the impugned trademark, stating that the registration was not required to be cancelled due to procedural errors and that the impugned trademark was not deceptively similar to the appellant's trademarks. The court found no grounds to interfere with the impugned judgment and dismissed the appeal and pending applications.

Case Citation: Loreal Vs Rajesh Kumar Taneja :15.07.2024/RFA(OS)(IPD) 2/2023 :Delhi High Court: Vibhu Bakhru and Tara Vitasta Ganju, H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Zuventus Healthcare Limited Vs Zaventis Health Care Private Limited

In the case of Zuventus Healthcare Limited vs. Zaventis Health Care Private Limited, Zuventus Healthcare Limited initiated legal proceedings seeking a permanent injunction against Zaventis Health Care Private Limited. The plaintiff, Zuventus Healthcare, asserted its exclusive rights to the trademark and corporate name "ZUVENTUS" and "ZUVENTUS HEALTHCARE LIMITED," respectively. These rights, they argued, were established through extensive use and recognition in both domestic and international markets, bolstered by significant manufacturing capabilities and a well-established brand reputation.

Zuventus Healthcare contended that the defendant's use of the mark "ZAVENTIS HEALTH CARE" was a clear case of infringement, as it bore a strong visual, structural, and phonetic resemblance to their own trademark. This similarity, they argued, was likely to cause confusion among consumers, leading to potential damage to their brand and reputation. The plaintiff further alleged that the defendant's adoption of the mark was not only an infringement of their trademark rights but also a violation of their copyright, considering the distinctiveness and originality associated with the "ZUVENTUS" brand.

The court, upon examining the arguments and evidence presented by Zuventus Healthcare, found merit in the plaintiff's claims. It acknowledged the strong likelihood of consumer confusion due to the similarities between the two marks. This confusion could detrimentally affect the plaintiff's business and erode the distinctiveness of their well-known trademark. 

Recognizing the potential for irreparable harm, the court deemed it appropriate to grant the injunction sought by Zuventus Healthcare. As a result, the court issued an order restraining Zaventis Health Care from using the "ZAVENTIS" trademark and any related trade names or domain names that could be construed as similar to "ZUVENTUS." 

Case Citation: Zuventus Healthcare Limited Vs Zaventis Health Care Private Limited :05.07.2024/CS(COMM) 545/2024:Delhi High Court: Mini Pushkarna, H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Kamal Kumar Hirawat Vs Maruti Poly Films

In this case of Kamal Kumar Hirawat vs Maruti Poly Films & Ors, heard before the Hon'ble Justice Krishna Rao at the High Court at Calcutta on July 5, 2024, the plaintiff, Kamal Kumar Hirawat, a sole proprietor trading as M/s. Hirawat Trading Co., sought an interim order against the defendants, Maruti Poly Films & Ors., a partnership firm.

Hirawat has been in the business of manufacturing and marketing adhesive tapes since 1995, using the trademark "FIGHTER" since that time. The trademark is registered under class 17 of the Trade Marks Act, 1999, with copyright protection obtained in 2023.

The defendants applied to register a similar trademark, "FITTER," for identical goods, leading Hirawat to file a Notice of Opposition. Despite this, the defendants began selling goods under the "FITTER" mark, which Hirawat argues is deceptively similar to "FIGHTER," causing confusion among customers.

The Court found that Hirawat had made a prima facie case and that the balance of convenience lay in his favor. It was established that Hirawat was the prior user of the "FIGHTER" mark and had been using it continuously since 1995. 

The Court ruled that the defendants' use of "FITTER" infringed on Hirawat's trademark rights, and granted an ad interim injunction restraining the defendants from using the impugned trademark or any deceptively similar mark. 

Case Citation: Kamal Kumar Hirawat Vs Maruti Poly Films:05.07.2024/IP-COM/15/2024:Calcutta High Court:Krishna Rao, H. J. 

[The information is shared in the public interest. Readers' Discretion is advised as it is subjective and may contain errors in perception, interpretation, and presentation.]

Advocate Ajay Amitabh Suman

IP Adjutor [Patent and Trademark Attorney]

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Universitat Ulm Vs Assistant Controller Of Patents

The case Universitat Ulm vs Assistant Controller Of Patents And Designs was heard in the High Court of Judicature at Madras on July 3, 2024. Universitat Ulm, a German institution, filed an appeal under Section 117A of the Patents Act, 1970, against the Assistant Controller of Patents and Designs, Government of India, seeking to overturn an order from August 30, 2019, that rejected their patent application. 

The application, numbered 645/CHENP/2011, claimed a patent for the use of Opioids or Opioid Mimetics in treating resistant cancer patients. The grounds for rejection were not fully articulated in the document provided, but it was mentioned that the respondent found the patent to be obvious to a person skilled in the art based on the combined teachings of various prior art references (D1 to D5 and D7 to D10). 

Despite the appellant bringing to the respondent's attention that a US patent had been granted for a similar invention after considering the prior art (D6), the respondent did not discuss this in the impugned decision. Universitat Ulm has filed the appeal on the grounds that the Assistant Controller of Patents and Designs, Government of India, did not adequately discuss the prior art or the explanations provided by the appellant in their written submissions. They also pointed out that the respondent did not consider the fact that a US patent had been granted for a similar invention after taking into account the prior art, which was brought to the respondent's attention through Form-3. 

Additionally, the appellant's counsel argued that the respondent failed to discuss the synergistic effect of the treatment as mentioned in the appellant's written submissions. These omissions led to the appeal being filed under Section 117A of the Patents Act, 1970, with a prayer to set aside the order and allow the patent application to proceed to grant. 

The respondent's counsel, Mr. J. Madanagopal Rao, argued that the order was comprehensive and clearly stated that the patent was obvious to a person skilled in the art, based on the combination of teachings from multiple prior art references. He saw no need for a remand. 

Justice P.B. Balaji, after reviewing the arguments, found the rejection decision to be cryptic and lacking in discussion regarding the obviousness of the patent and the prior art. The appellant's submission about the synergistic effect of the treatment was also not considered by the Assistant Controller. The Court decided to remand the matter to a different Patent Controller for fresh consideration, ensuring a personal hearing for the appellant and a decision within three months. The appeal was allowed with these directions, and there was no order as to costs.

Case Citation: Universitat Ulm Vs Assistant Controller Of Patents/03.07.2024/CMA(PT) No.1 of 2024:Madras High Court:P.B.Balaji, H. J. 

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Advocate Ajay Amitabh SumanI

P Adjutor [Patent and Trademark Attorney]

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