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Indian Patent Office

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Revocation of patent rights granted on the ground of the combination is obvious, on the ground of violation of sec. 8 of Act = patent is for a fix combination of Bimatoprost and Timolol for treatment of treatment of ocular hypertension. = whether this combination was obvious in view of simultaneous (five minute gap) administration of these known drugs referred to as serial, adjunct or noncommittal or monothrapy. = “According to our Act, the patent is revoked if the invention is obvious. So the secondary considerations cannot change that.” Therefore the secondary objective evidence is not relenvant in determining non obviousmness as per law. ; violation of section 8 = In this case there is non compliance of section 8(2) as no information relating to prosecution of same application in other countries was provided even when the respondent agreed to do so as when it would be available vide letter dated 18th January 2005. A petition under Rule 137 for condonation of delay and irregulaty inrespect of ‘foreing filling particulars’ was filed on 18 January 2005. But the information relating to WO 2002096432, US 10/153,043 and EP 02739579.7 and Office action relating to US and EP application was not filed. USPTO rejections (claims 18-33 rejected) were dated 21.11.2003 very much before issue of FER on 21.09.2004. Similarly the US final rejection dated 12.10.2004 was also not furnished to IPO. EPO Examination report was available on 11.02.2005 and that was also not submitted. Even the International Serach Report in respect of WO /02/096432 which was available on 8th May 2003, very much before issue of FER, was not submitted to IPO. We are not looking at this moment why it was not given.But the fact remained that there was non compliance of Section 8. We have indicated the principles behind the S.8 objection, how it should be raised, defended and decided. The Act says failure to disclose the information required by S.8 is a ground for revocation. It does not qualify it by saying that the failure must be deliberate nor are there any words to indicate that the failure must be in regard to material particulars. In the present case the gound of the violation of section 8 has been clearly made out and we have no hesitation say applicant succeed on this ground of revocation. Withdrawing expert evidence is not fatal -Just because the Expert evidence in this case has been withdwrawn would not persude us to look away the prior art staeing at the impuned patent. We find on the facts of this, prior art documents in the form of patent document or non-patent literature filled by the applicant sufficient to decide the issue before us. Therefore this objection of the respondent is not maintainable. – Just because the Expert evidence in this case has been withdwrawn would not persude us to look away the prior art staeing at the impuned patent. We find on the facts of this, prior art documents in the form of patent document or non-patent literature filled by the applicant sufficient to decide the issue before us. Therefore this objection of the respondent is not maintainable. Law of Limitation Act nor applies =“The right to revoke patent any time after the grant of patent under section 64 cannot be extinguished after three years from the date of the publication of the grant by applying limitation of three years under Article 137 of the Limitation Act. This will run contrary to the scheme of the patent law. It is immaterial as to when the applicant for revocation came to know about the existence of patent or when the right to revoke the patent accrued. Thus the application for revocation can be filed before Appellate Board any time after the grant of a patent. This application is therefore not time barred’. This revocation application is not time barred.

published in  http://www.ipab.tn.nic.in/172-2013.htm INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018     ORA/20/2011/PT/KOL AND M.P.NO.59/2011, 25, 63-64,129, 136-138/2012 & 14/2013 IN ORA/20/2011/PT/KOL   THURSDAY, THIS THE 8TH DAY OF AUGUST, 2013 Hon’ble Smt. Justice Prabha Sridevan     …Chairman       Hon’ble  Shri D.P.S. Parmar                         …Technical Member (Patents)   Ajanta Pharma Limited, … Continue reading

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