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A landmark decision has been awarded by the Calcutta High Court on 15th January, 2002 in respect of patenting of inventions involving micro-organisms in a case filed by Dimminaco A.G. against the decision of the Controller General of Patents, Designs and Trademark.
The Appellant had filed a patent application for an inventive process of preparing infectious Bursitis vaccine. The application was turned down by the Patent Office on the ground that the process did not constitute an invention under the Act. No reason(s) was assigned for this decision. The Court took a serious note of the fact that quasi-judiciary duties of the office had not been adequately discharged.
During the arguments before the Court, the Patent Office maintained that an inventive process must lead to an article or a substance. An article according to the Patent Office implied material thing, item, a thing of a particular class or kind as distinguished from a thing of any class or kind. It was further argued that only an inanimate object can be denoted as a thing or item and not a living one. It was therefore concluded that a vaccine with the living organism could not be considered substance. Hence, the process of preparing a vaccine having a living entity cannot be considered manufacture. The appellant argued that the terms manufacture and substance had not been defined in the Act and therefore one would have to rely on the meaning provided in a dictionary. The appellant also brought to the notice of the Court that the Patent Office on earlier occasions had accepted applications in respect of new processes which included cells, virus and other microorganisms.
The Patent Office submitted that all the patents mentioned above involved lyophilizing which means freeze drying which was interpreted by the Patent Office as death of the microorganism. However, it was found that the lyophilizing put the microorganisms in dormant state which did not necessarily mean death of microorganisms.
The Court held the following:-
The judgement opens up new opportunities for obtaining patents in India on microorganism related inventions which were hitherto not granted. Further, the importance of definitions in the Act has been clearly brought out. The law cannot be left to the interpretation of individuals. There has to be a consistent interpretation which should follow some logic.