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Judgment
,,,
Prabha Sridevan, J",,,
1 . This application is filed against the rejection of the patent application No. 40/2007/PT/MUM in view of the present opposition filed by M/s. Jaishal,,,
Sulfur & Chemical Industries vide Controller Order dated 24th October 2009. The patent application is for an invention entitled ""NOVEL",,,
AGRICULTURAL COMPOSITION"". T field of the invention relates to an agricultural composition comprising an effective amount of a sulphur",,,
active ingredient and atleast one dispersing agent. The agricultural composition instantly converts sulphur to its sulphate form so that desired quantity,,,
of sulphur is made available for assimilation by the plants. The composition is in the form of water dispersible granules in the size of about 0.1 to about,,,
2.5 mm with the particle size in the range of about 2 microns to about 12 microns. The First Examination Report cited seven documents and pointed,,,
out that the claims 1 to 15 were lacking in inventive step. The appellant replied to this and amended the claims. The original 15 claims were limited to,,,
13 claims. The original claim 2 and certain embodiments of claim 5 were merged into claim 1. Original claim 15 was deleted.,,,
Thus,",,,
a) claim 1 as on the date of hearing read thus, ""an agricultural composition comprising an effective amount of a sulphur active ingredient in a range of",,,
about 40% to about 98% (w/w); at least one dispersing agent is in a range of about 2% to about 60% (w/w) a wetting agent; a binding agent; a filler,,,
and an organic additive.""",,,
b) Claim 2 recited the concentration of the wetting agent; binding agent; filler and the organic additive.,,,
c) Claim 3 recited the total number of percentage parts of the sulphur active ingredient and dispersing agent.,,,
d) Claims 4 to 8 identified the various dispersing agents; fillers and an organic additives used in the claimed agricultural composition.,,,
e) Claim 9 recited the forms into which the claimed composition is formulated.,,,
f) Claim 10 identified that the claimed composition is formulated into water dispersible granules.,,,
g) Claims 11 and 12 defined the water dispersible granules and the particle size of the granules.,,,
h) Claim 13 recited the use of the claimed composition.,,,
2 . The pre-grant opposition was filed by the respondent No. 2. According to the appellant the copy of the opposition, the supporting documents were",,,
not served as per procedure. But the appellant filed a reply addressing the objections. According to the appellant though in the impugned order the,,,
respondent No. 1 had observed that the appellant had managed to obtain them or that the appellant could have asked for them, the fact remains that",,,
they were not served as per procedure. After much effort, all the enclosures were provided to the appellant but belatedly. Finally, the pre-grant",,,
opposition was heard and the impugned order held that the invention was not patentable.,,,
The learned counsel for the appellant submitted that the invention possessed both novelty and inventive step. The invention lay in the fact that the,,,
sulphate conversion is immediate and is absorbed by the plants. He referred to all the expert evidence, and submitted that all the experts have testified",,,
that this was new, and neither obvious nor anticipated. Conversion to sulphate is instantaneous. The learned counsel submitted that the Australian",,,
patent application for the same invention had been accepted.,,,
4 . The learned counsel submitted that the impugned order erred in holding that all the ingredients of the present application were present in D1( the,,,
prior art). The respondent failed to see that high dispersion of sulphur had been achieved resulting in reduction of environmental hazards and also,,,
easier assimilation by plants. The learned counsel submitted that the Controller failed to see that the high loading of sulphur as an active ingredient of a,,,
particular granular size is entirely novel. The present composition is more flowable. The learned counsel submitted that a comparison between D1 and,,,
the invention would show that D1 contains 80% by weight of sulphur active ingredient, 0.5 to 5% of wetting agent, 0.5 to 5% of dispersing agent, 6 to",,,
35% of the filler and binding agent, anti-foaming agent with specific size, whereas, the present application discloses an agricultural composition",,,
containing about 82% to 98% of sulphur active ingredient, about 0.1 to 5% of a binding agent, about 2 to 60% dispersing agent, about 0.1 to 7% of",,,
binding agent, a filler in the range of about 0.1% to about 5% and optionally an organic additive in the range of about 0.01% to 50%.",,,
The learned counsel submitted that the purpose of D1 was fungicidal, whereas the purpose of the invention was to deliver sulphur swiftly as",,,
sulphate to be assimilated by the plants which would directly benefit by it. Learned counsel submitted that a person who is preparing an agricultural,,,
composition which is a plant nutrient will not be motivated by the teaching of an invention which is for a fungicidal composition. The latter would not,,,
lead to the former. The learned counsel submitted that almost all the sulphur based compositions come in large particles which block the irrigation,,,
system and are not easily flowable or dispersible, whereas the invention provides for almost immediate intake by the plant. The learned counsel",,,
submitted that the impugned order deserved to be set-aside and the patent should be granted.,,,
The respondent 2 did not defend the appeal and indicated its intention to withdraw his opposition to the patent vide its letter dated 06.06.2011. So far,,,
as the withdrawal of the opposition is concerned, we find in (1905) 22 RPC 573 (In the matter of Kempton and Mollan's Application for a Patent) the",,,
following interesting observations relating to withdrawal of opposition:,,,
I would like to say this about the withdrawal of Oppositions so that parties may understand the position in which they are placed. The fact that an,,,
Opposition is withdrawn does not in the least entitle an Appellant before the Law Officer to have the decision of the Comptroller reversed. It is the,,,
duty of the Comptroller as far as he can, more especially when it is brought to his notice by an Opposition, not to allow a Patent to go forth to the",,,
public for an invention which - upon the statements before him and the specifications brought to his notice has been substantially included in previous,,,
patents. It is quite clear that once the comptroller has come to that conclusion, the Law Officer ought not (simply because the parties by an",,,
arrangement have agreed to get rid of Opposition), any more than the comptroller when it comes before him, to allow a Patent of that character to be",,,
sealed for the purpose of going to the public as a Patent granted by the Patent Office. That was why I allowed the matter to stand over on the last,,,
occasion, because I was anxious to find out whether the Opposition was withdrawn on the ground that the Opponent no longer thought he was able to",,,
substantiate the Opposition, or whether it was withdrawn because of some consideration to him which operated on his mind, and which rendered it",,,
practically immaterial to him whether the Opposition succeeded or not. It is quite clear, from the agreement which is now brought before me that the",,,
Opposition in this case has been withdrawn because the Opponent has been satisfied, not that he was wrong in his Opposition, but in another way very",,,
much more satisfactory to himself.,,,
I think, therefore, it will be my duty in the present case to affirm what the Comptroller has done.",,,
We also are of the opinion that it is the duty of the Board not to allow a patent to go forth to the public, merely because the opposition is withdrawn.",,,
It is our duty to examine the impugned order, even if the opposition is withdrawn. The opposition may be withdrawn for a private interest, and it still",,,
may not be in public interest to grant the patent.,,,
We have, therefore proceeded to hear and decide the matter on merits inspite of the request of the opponent for withdrawal of the opposition at this",,,
stage of appeal.,,,
The Controller had considered the various grounds of opposition.,,,
a) The objection of Prior publication was accepted,,,
b) The objection that it was publicly used was rejected.,,,
c) The objection that it is obvious and lacks inventive step was accepted,,,
d) The objection that it is not an invention as per S.3(d) was accepted,,,
e) The objection that it is only an admixture was rejected,,,
f) The objection that it is not an invention as per S.2(1)(j) was accepted.,,,
g) The objection that it was not sufficiently disclosed was held to be not relevant.,,,
The Controller also did not allow the amendment relating to disclaimer up to 82% of the sulphur as it was not allowable u/s 59 of the Act.,,,
We have gone through the papers and the submissions of the learned counsel for the appellant.,,,
The original claims are :,,,
1 . An agricultural composition comprising: an effective amount of sulphur active ingredient and, at the cast one dispersing agent.",,,
2 . The agricultural composition of claim 1, wherein the sulphur active ingredient is in a range of about 40% to about 95% (w/w) and the at least one",,,
dispersing agent is in a range of about 2% to about 60% (w/w).,,,
3 . The agricultural composition of claim 1, wherein total number of percentage parts of the sulphur active ingredient and the at least one dispersing",,,
agent dues not exceed 100 on a dry (w/w) basis.,,,
The revised claims are:,,,
1 . An agricultural composition for application to the soil that converts Sulphur to its sulphate form instantly to be available for uptake by the plants,,,
comprising: an effective amount of a Sulphur active ingredient in a range of about 82% to about 98% (w/w), at least one dispersing agent in a range of",,,
about 2% to about 16% (w/w); a wetting agent in the range of about 0.1% to about 5%; a binding agent in the range of about 0.1% to about 7%; a,,,
filler in the range of about 0.1% to about 5%, and an organic additive in the range of about 0/.01% to about 5% characterized in that the water",,,
dispersible granules are in a size range of about 0.1 to about 2.5 mm and the granules comprise particles in a size range of about 2 microns to about 12,,,
microns.,,,
The agricultural composition as claimed in claims 1, wherein total number of percentage parts of the Sulphur active ingredient and the at least one",,,
dispersing agent does not exceed 100 on a dry (w/w) basis.,,,
The agricultural composition as claimed in claims 1 to 2 wherein, at least one dispersing agent is selected from a group comprising",,,
polyvinylpyrrolidone, polyvinylalcohol, lignosulphonates, phenyl naphthalene sulphonates, ethoxylated alkyl phenols, ethoxylated fatty acids, alkoxylated",,,
linear alcohols polyaromatic sulfonates, sodium alkyl aryl sulfonates, glyceryl esters, maleic anhydride copolymers, phosphate esters, condensation",,,
products of aryl sulphonic acids and formaldehyde, condensation products of alkylaryl sulphonic acids and formaldehyde, addition products of ethylene",,,
oxide and fatty acid esters, salts of addition products of ethylene oxide and fatty acid esters, sulfonates of condensed naphthalene, addition products of",,,
ethylene oxide and fatty acid esters, salts of addition products of ethylene oxide and fatty acid esters, lignin derivatives, naphthalene formaldehyde",,,
condensates, sodium salt of isodecylsulfosuccinic acid half ester, polycarboxylates, sodium alkylbenzenesulfonates, sodium salts of sulfonated",,,
naphthalene, ammonium salts of sulfonated naphthalene, salts of polyacrylic acids, salts of phenolsulfonic acids and salts of naphthalene sulfonic acids.",,,
4 . The agricultural composition as claimed in claims 1 to 3 wherein, the wetting agent is selected from of group comprising phenyl naphthalene",,,
sulphonates, alkyl naphthalene sulfonates, sodium alkyl naphthalene sulfonate, sodium salt of sulfonated alkylcarboxylate, polyoxyalkylated ethyl",,,
phenols, polyoxyethoylated fatty alcohols, polyoxyethoxylated fatty amines, lignin derivatives, alkane sulfonates, alkylbenzene sulfonates, salts of",,,
polycarboxylic acids, salts of esters of sulfosuccinic acid, alkylnaphthalenesulphonates, alkylbenzenesulfonates, alkylpolyglycol ether sulfonates, alkyl",,,
ether phosphates, alkyl ether sulphate and alkyl sulfosuccinic monoesters.",,,
5 . The agricultural composition as claimed in claims 1 to 4 wherein, the binding agent is selected from a group comprising polyvinyl alcohols, phenyl",,,
naphthalene sulphonate, lignin derivatives, polyvinyl pyrrolidone, polyalkylpyrrolidone, carboxymethylcellulose, xanthan gum, polyethoxylated fatty",,,
acids, polyethoxylated fatty alcohols, ethylene oxide copolymer, propylene oxide copolymer, polyethylene glycols and polyethylene oxides.",,,
The agricultural composition as claimed in claims 1 to 5, wherein the filler is selected from a group comprising bentonites, sub-bentoriites,",,,
attapulgites, kaolinites, montmorillonites, bauxite, hydrated aluminas, calcined aluminas, diatomaceous earth, chalk, fuller's earth, dolomite, kiesulguhr,",,,
loess, prophyllites, talc, vermiculites, limestone, natural and synthetic silicates, silicas and china clay.",,,
As regards the foreign filing details the Controller held as follows:,,,
The applicant submitted the foreign filing details in form 3 along with a petition u/r 137 for condoning the irregularity in such filing on 25/05/2009 and,,,
the same have been taken on record.,,,
1 3 . The main issue to be decided is whether the invention has novelty and an inventive step.,,,
Sr. No,Ingredient,40/MUM/2007,655/mum/2000(D1)
1.,Sulphur,"About 82- about
98%","- about 98% 80% (claimed) 80 to 82% (disclosed) in
examples
2.,Dispersing agent,"2-60% which was
Corrected during
hearing",0.5 to 5%
3.,Binding agents,0.1 - 10%,Binding agent is present But % not disclosed.
4.,Filler,0.1 - 10%,6% to 35% alongwith binding agents
5.,"Optionally
organic additives",0.1 -50%,"0 . 0 2 to 1.4 of antifoaming agents, mentioned in the
list of organic Additives
6.,Wetting agents,0.1-5%,0.5 to 5%
7.,Granules size,"About 0.1 mm to
about 2.5 mm",12 to .18 mm (examples) Above .2 mm (claims)
8.,Particles size,"About 2 microns to
About 12 microns",1 microns to 20 microns
Dr. Vijay Yadav, Delhi, INDIA Soil Scientist, Dev. Manager",,,
Dr. Pradeep Chahal Hissar, Haryana Dept of Ag. Govt of Haryana",,,
Dr. Rajpaul Yadav, Bohana, Rajasthan Soil Scientist, Dev. Manager",,,
6 . Dr. G. Mustanhana Reddy, Dharwad, Karnataka Senior Scientist, Agricultural Research Station, Dharwad University",,,
7 . Dr. Jitendra Yadav, Hissar, Haryana Senior Researcher, Haryana Agricultural University",,,
Dr. Sandeep Bhakar, Hissar, Haryana Haryana Agricultural University",,,
9 . Dr. Mrs. S. Suryakumari, Guntur, Andhra Pradesh Senior Scientist (Hort) Horticultural Research Station",,,
Dr. Sanjay Nimoria, Hissar, Haryana Extension service, HAU",,,
We will first take up the evidential value of the experts from S. No. 3 to 9.,,,
S. No. 3 - Dr. Vijay Yadav is Development Manager in a Private Organisation. His evidence at para 4 deals with the efficacy, convenience of the use",,,
of the invention and results the invention produces. He has stated that the invention gave 13.5% extra yield which is a real achievement and that only,,,
a person skilled in the art would be able to make a product which at much lower doses as compared to other sources is able to result in improved,,,
yields and superior quality.,,,
S. No. 4 - Dr. Pradeep Chahal is also a Ph D is working in Department of Agriculture in the Government of Haryana. His evidence speaks of the use,,,
of the invention in this yield and the increase in yield when the invention in question is used. Para 5 which deals with the person skilled in the art states,,,
that only such a person would be able to make a product which at much lower doses as compared to other source is able to result in improved quality.,,,
S. No. 5 - Dr. Rajpaul Yadav is a Ph D in Soil Sciences and he is a Development Manager in a Private Organisation. His affidavit is almost identical,",,,
the affidavit of expert in S. No. 3.,,,
S. No. 6 - Dr. G. Mustanhana Reddy is a Ph D in Agronomy and he has carried out evaluation of the invention and he too talk of the net result. He,,,
too speaks of the person skilled in the art would be able to make a product which at much lower doses as compared to other sources is able to result,,,
in improved quality.,,,
S. No. 7 - Dr. Jitender Yadav is a Ph D Agronomy and he again speaks of the use of an invention and the fact that there was an increase of 12.5%,,,
when using Fertis which is the invention. Para 5 deals with person skilled in the art would be able to make a produce which at much lower doses as,,,
compared to other sources is able to result in improved quality.,,,
S. No. 8. - Dr. Sandeep Bhakar is also Ph D and serving as Senior Research Fellow. He has compared the other sources of sulphur to the invention,,,
and found that substantially improved crop yields were obtained. Para 5 deals with person skilled in the art would be able to make a produce which at,,,
much lower doses as compared to other sources is able to result in improved quality.,,,
S. No. 9 - Dr. S. Suryakumari is a Ph D who serving as Senior Scientist. His witness also speaks of the improved yields. Para 5 deals with person,,,
skilled in the art would be able to make a produce which at much lower doses as compared to other sources is able to result in improved quality.,,,
The evidence of the above experts do not deal with the effect of D1 on the invention.,,,
John Peace, who is affiliated to the Royal Society of Chemistry, Member of the Chemical Industry, Member of the British Malaysian Society, etc.",,,
He is the sulphur expert with 40 years experience in the Sulphur Industry. ""I have reviewed claim 1 of Indian Patent Application No. 40/MUM/2007",,,
which claims an agricultural composition comprising an effective amount of sulphur active ingredient and one dispersing agent. I do not believe that,,,
claim 1 does justice to Mr. Shah's invention. Neither does it do justice to what is known in the prior art. Any known sulphur composition would contain,,,
sulphur active ingredient and a dispersing agent and therefore, I do not find anything surprising or special in what is claimed in claim 1 of Application",,,
No. 40/MUM/2007. From the bunch of documents in file handed over to me I also find that Mr. Shah has filed a corresponding International,,,
Application No. PCT/IN2007/000518 against which several documents have been cited. I am not surprised since what is claimed in claim 1 would,,,
include every prior art composition most of which may not even achieve the results claimed to be special in Mr. Shah's invention. After reviewing all,,,
the documents presented to me it is my reasoned and unbiased conclusion that the true invention of Indian Application No. 40/MUM/2007 has been,,,
brought out not in claim 1 but in the examples, particularly examples 1 to 3 and 6. The novel and inventive aspect of Indian Patent Application No.",,,
40/MUM/2007 resides in the fact that the composition of this patent Application achieves over 80% dispersibility in spite of having 84 to 91% loading,,,
of sulphur which is extremely high by any standards. This has been clearly brought out in examples 1 to 3 and claims 12 and 13 as originally filed. As,,,
mentioned previously, the composition of Application No. 40/MUM/2007 is an agricultural composition while that of 655/MUM/2000 is fungicidal",,,
composition. Therefore, no one who has any skill in the art would even dream of using a fungicidal composition as a plant nutrient composition if",,,
someone succeeding in modifying a fungicidal composition to make it a plant nutrient composition, it would surely evidence invention, not lack of it.",,,
Compositions as both the patent specifications are agricultural composition but because of the difference in combination of ingredients, their amounts,",,,
the specific particle size, the specific granular size and the overall physical and chemical attributes that results, on acts as a cite while other acts as",,,
plant growth composition. Therefore, by no stretch of imagination can one anticipate or render obvious the other. A person burdened with the task of",,,
preparing a highly efficacious plant growth nutrient composition would not be motivated to follow the teachings of a document which relates to a,,,
fungicidal composition and even if he did, he could have no reasonable expectation of the desired results. No skilled reader of the cited document",,,
would think of reducing the particle size by 10 to 60 times less than what is taught by the cited document. At the same time if the skilled person,,,
followed the teachings of the cited document he would prepare a composition with a particle size of close to 150 microns which would result in,,,
granules of much larger size thereby resulting in the very drawbacks which the opposed invention seeks to avoid. As mentioned previously, the",,,
inventive merit of the opposed Patent Application No. 40/MUM/2007 resides in the very high loading of sulphur and the specific granular and particle,,,
size. The composition disclosed in the cited documents most of which are in the form of pellets, will have to be applied to soil several weeks in",,,
advance, a drawback which the Indian Patent Application No. 40/MUM/2007 very effectively overcomes.""",,,
2 6 . The Second Expert is an inventor of patents he has more than 30 years of experience in sulphur solutions for sulphur nutrition. To my utter,,,
surprise Shah's Composition dispersed almost instantaneously, testifying to the fact that his composition is indeed a very superior composition capable",,,
of providing instant availability of sulphur for conversion to sulphuric acid and then sulphate to the plants. The other compositions at so high quantity of,,,
sulphur did not disperse quickly, most of them taking several hours. Some had not even begun to disperse even after several hours. Having spent",,,
decades in this area of technology I am aware that making high amounts of sulphuric acid (and then sulphate) available to crops almost,,,
instantaneously would result in extremely healthy and high quality result in extremely healthy and high quality crops. Despite this knowledge, the",,,
researchers working in this area of technology have been unable to develop a sulphur composition with such high loading of sulphur and such a small,,,
particle size because the very nature of sulphur prevented preparation of such a composition.""",,,
We have great respect for the evidence of the above two experts. The Second Expert has testified to the instant availability of the composition, but",,,
he has not compared the invention with D1. The First expert has compared both invention and D1, and has testified that D1 teaches away from the",,,
invention. But he has seen the Patent claims and specification as originally filed. That is why he has stated that Claim 1 will include all sulphur,,,
composition, and that the invention does not lie in Claim, but rather in Claim 12 and 13 and in examples 1 to 3. He has actually culled out from the",,,
Claims that he saw and gave his opinion about what was the real inventive step out of the claims filed. It is not clear from his evidence whether this,,,
expert and the Second expert, saw the claims as filed when the proceedings were heard.",,,
We have given our anxious thought to this case, especially because the opponent has withdrawn itself. We asked ourselves the question whether",,,
the First expert's testimony was not sufficient to grant the appellant the patent. Persons having skill in the art know that sulphur is both a plant nutrient,,,
and a fungicide. According to the Second Expert the special feature of the invention is that it disperses quickly, whereas other compositions took a",,,
few hours, some even longer time than that. From the evidence of the First expert we understand that it is the reduction of the particle size that",,,
achieves the desired effect, though he has spoken of specific granular size and over all combinations, we are able to see that the crux is the reduction",,,
of the particle size and the prior arts indicates reduction in size aids conversion (para 16 supra).,,,
I n 190 F3d 1342 - Atlas Powder Company and Hanex Products Inc vs., IRECO Incorporated and ICI Explosives USA. Inc,",,,
the patent claimed explosive compositions.,,,
In this case it is an agricultural composition.,,,
Widely used explosives are relatively weak because the interstitial air occupies considerable space leaving less room for explosives.,,,
Most sulphur compositions did not disperse easily and therefore oxidised after several hours and did not become available to plants easily,,,
In the US case the prior art Egly was held to teach away from air entrapment. It did not teach the special techniques of the invention. It taught,,,
removal of interstitial air by addition of more emulsion.,,,
In the present case too D1 was held to teach away from the invention, and no one looking at fungicide will think of plant nutrient.",,,
The Federal Court referred to 778 F.2d at 775 Titanium Metals. In this case the patent applicant sought for a titanium alloy containing various ranges,,,
of nickel, molybdenum, iron and titanium and that it was characterized by good corrosion resistance in hot brine environments. The prior art disclosed a",,,
titanium alloy falling within the claimed ranges, but did not disclose any corrosion resistant properties. The Court concluded that the claimed invention",,,
was anticipated. Following Titanium in the above case the Federal Court held that "" although Egly may have suggested removal of air, it nonetheless",,,
contained inherently contained interstitial aeration sufficient to enhance sensitivity when comprised of elements within the clay patent range"".",,,
2 9 . In the present case, the invention includes the word 'plant protectant' while describing the present composition. The word 'plant protectant' to our",,,
understanding will include any composition which will protect the plants from infection or which is fungicidal or matricidal in nature. Then the present,,,
invention will clearly bar the grant of patent to D1 because the D1 composition and the present one contain along with sulphur, the same ingredients",,,
like binding agent, wetting agent etc as seen from the comparative table.",,,
3 0 . The appellant herein had by its amendment to claim No. 1 incorporated limitations. We have already seen that the expert No. 1 has rejected,",,,
described claim No. 1. Therefore, the appellant introduced series of limitations which were really taken from the dependent claims in the original",,,
specifications. Therefore the Controller allowed the amendments to claim No. 1. But disclaimer up to 82% of sulphur, he rejected because it is not",,,
disclosed in the complete specifications as filed. He held that there was no support in the description for carving out a narrow range of sulphur,,,
contained from the proper range claimed in the original complete specifications. We find no infinity in the conclusions. For all the above reasons we,,,
confirm the impugned order. The appeal is dismissed. No costs.,,,