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Judgment
Claim 1 of present patent application,D1 (CN 1857888)
Raw material used:
-Â Â Â Â Â Â Â Â Â Â fly ash with
free lime content","Raw material used:
- fly ash. Does not mention that fly ash
having free lime content to be used.
- soda ash effluent that is
effluent generated from the ammonia
recovery section of the soda ash
plant that comprises CaCO3,
Ca(OH)2, SiO2, Al2O3.","- No mention of using effluent from soda ash
plant. Instead use of industrial grade NaNO3
and Na2CO3 is required
-Â Â Â Â Â Â Â Â Â Â water,-Â Â Â Â Â Â Â Â Â Â water
- Uses only industrial waste and
water as raw material","Requires              Â
commercially available ingredients to be
used.
Uses ordinary industrial grade NaNO3 and
Na2CO3 along with industrial waste (fly ash)
- Pre-treatment of fly ash required:
Fly ash is hydrated prior to mixing
with soda ash effluent","- No pre-treatment of fly ash required: Fly
ash is not hydrated prior to mixing with
NaNO3 and Na2CO3, rather a solution of
NaNO3 and Na2CO3 in water is prepared,
prior to addition of fly ash.
Sodium Nitrate (Soda ash effluent) with fly ash and water, followed by putting the mixture in a mould and curing it naturally.†It is submitted that the",
Respondent has erred in concluding that D1 discloses a production process that includes mixing soda ash effluent with fly ash and water because of,
the following reasons:,
D1 does not disclose or suggest the use of effluent from a soda ash plant, let alone use of effluent generated from the ammonia recovery section of",
the soda ash plant.,
Rather, D1 discloses the use of the final product of the soda ash plant that is., soda ash (sodium carbonate) along with sodium nitrate for the",
production of fly ash blocks. D1 specifically states, “a high volume fly ash block manufacturing method, characterized in that the NaNO3,",
Na2CO3, common industrial grade NaNO3, Na2CO3†(see claim 2 of D1). It is therefore apparent that the Respondent has clearly failed to",
appreciate the process disclosed in D1 and erred in his holding.,
Sodium carbonate (Na2CO3) is not an effluent of the soda ash plant. In fact, sodium carbonate is soda ash i.e., the final product of a soda ash",
plant. Further, no document has been cited by the Respondent in support of the assumption that sodium carbonate is an effluent of the soda ash plant,",
let alone any document that specifically teaches that sodium carbonate is an effluent generated from the ammonia recovery section of the soda ash,
plant.,
Sodium nitrate (NaNO3) is also not an effluent of the soda ash plant. Again, the Respondent has failed to cite any document in support of this",
holding that sodium nitrate is an effluent of the soda ash plant, and specifically sodium nitrate is an effluent generated from the ammonia recovery",
section of the soda ash plant.,
The learned counsel of the appellant further submits that the Respondent has without any application of mind and without any documentary evidence,
reached at an incorrect assumption that D1 discloses a production process that includes mixing soda ash effluent with fly ash and water.,
The Respondent has overlooked the fact that the claimed process does not use the soda ash produced by the soda ash plant. In this regard, it is",
submitted that the present patent application does not use soda ash, rather the present patent application uses effluent generated from the ammonia",
recovery section of the soda ash plant, comprising CaCO3, Ca(OH)2, SiO2 and Al2O3 for the preparation of building material. It is thus submitted that",
the Respondent has completely misunderstood the invention disclosed in the present patent application and failed to appreciate the significance of the,
invention in utilizing waste materials to generate a useful product. This is clear from the impugned order that states: “…further being the soda ash,
sourced from the soda ash plant…â€,
 The Respondent has erred in holding that the inherent composition of soda ash is CaCO3, Ca(OH)2, SiO2 and Al2O3. At the outset, the claimed",
process does not use soda ash that is produced in a soda ash plant and accordingly the composition of soda ash is not relevant here. Although, the",
respondent has completely misunderstood the teachings of the claimed process it is nevertheless submitted that the inherent chemical composition of,
soda ash is sodium carbonate i.e. Na2CO3, and not as assumed by the Respondent. It is further submitted that the Respondent has failed to provide",
any document, that supports his assumption that the inherent composition of soda ash is CaCO3, Ca (OH)2, SiO2 and Al2O3 and that effluent",
generated from a soda ash plant is the soda ash itself.,
The Respondent has erred in his conclusion that “technical advancement obtained due to fly ash hydrated prior to mixing with the soda ash effluent,
is not clear from the specification.†In this regard, it is submitted that the step of hydrating the fly ash prior to mixing with soda ash effluent converts",
the free lime (calcium oxide) into calcium hydroxide. This step thus allows for use of fly ash containing free lime (calcium oxide), which is otherwise",
not suitable for manufacturing of building material. Reference in this regard is made to background section of the complete specification that states,
that “…superior quality fly ash is required for the manufacturing building material, and fly ash containing high free lime content is considered",
unsuitable. Building material such as bricks and concrete manufactured using fly ash containing free lime content tends to crack easily and have,
unsightly pop up.†Further, page 5, lines 13-14 of the specification states that “…the fly ash is hydrated to convert the free lime present to",
calcium hydroxide.†and page 5, lines 16 of the specification states that “Fly ash from the boilers used in a soda ash plant is collected (1) and",
hydrated with water (2). The hydration step is important as it converts the free lime present in the fly ash to calcium hydroxide.†Further, the",
complete specification also clarifies on page 6, line 17 that “That the process allows the conversion of a low value fly ash having high free lime",
content to a valuable product with long lasting strength.†It is therefore submitted that the above referenced paragraphs of the complete specification,",
clearly illustrates the result of hydrating the fly ash prior to its mixing with soda ash as well as the advantage achieved because of this step.,
It is further submitted that, the Respondent has failed to appreciate that the present invention lies in a process of preparing a building material from fly",
ash containing free lime (calcium oxide) content; effluent from a soda ash plant (soda ash effluent) generated from the ammonia recovery section of,
the soda ash plant, comprising CaCO3, Ca (OH)2, SiO2 and Al2O3; and water, the process comprising:",
• hydrating the fly ash containing free lime (calcium oxide) content;,
• mixing in a mixer the fly ash with effluent generated from the ammonia recovery section of the soda ash plant, comprising CaCO3, Ca(OH)2,",
SiO2 and Al2O3 and water for a predetermined period of time;,
• transferring the mixture so obtained into a mould; and,
• curing the mixture to obtain the building material.,
 The Respondent has also failed to appreciate that the process of the present patent application is neither taught in D1 nor is it obvious to a person,
skilled in the art from the teachings of D1.,
Let’s have a look on the hearing notice dated 09/03/2017, which contained mainly the following objection:",
The submissions in your letter dated 21nd September 2016 have been considered carefully. Amended claim 1 still lacking novelty as u/s 2(1)(j) of the,
Act in view of D1: CN 1857888 A Independent claim 1 is directed to a process of preparing a building material from fly ash and effluent from a soda,
ash plant comprising mixing in a mixer the fly ash with effluent from the soda ash plant and water for a predetermined period of time, transferring the",
mixture so obtained into a mould , and curing the mixture to obtain the building material. D 1 discloses the production of a building material with high",
fly ash content, where the production process includes mixing Sodium Carbonate and Sodium Nitrate (soda ash effluent) with fly ash and water,",
followed by putting the mixture in a mould and curing it naturally. •The invention defined in claim 1 is anticipated by this disclosure and therefore,
these claim is not new and do not meet the requirements of novelty. D1 does not disclose hydrating the fly ash prior to mixing with the soda ash,
effluent; generating the soda ash effluent from the ammonia recovery section of the soda ash plant; finely crushing the effluent' solids prior to mixing,
with the fly ash; curing the mixture by placing the mould in wet sacks, or the specific ratios of soda ash effluent and fly ash in the building material.",
Therefore the subject matter of claims 1-5 is obvious to a person skill in art and the person skilled in the art would know the Solvay Process and know,
from that process that Sodium Carbonate is a byproduct of the ammonia recovery process, and as such, lacks an inventive step.[Emphasis added]",
Let us have a look on the order of the respondent:,
The learned counsel of the appellant explained the process of preparation of a building material in accordance with their invention with the help of,
the diagram shown below:,
The respondent in his hearing notice dated 09/03/2017, has admitted that D1 does not disclose hydrating the fly ash prior to mixing with the soda ash",
effluent. Probably a fact which prevailed and hence his order did not mention the issue of lack of novelty.,
Therefore, the only issue was lack of “inventive step†and that to, specifically the non-clarity of understanding on the technical advance, when",
the respondent mentions in operating portion of his order that what technical advance is obtained if the fly ash is hydrated prior to mixing.,
The facts verified from the complete specification reveal that the complete specification at page 5, lines 16 states that “Fly ash from the boilers",
used in a soda ash plant is collected (1) and hydrated with water (2). The hydration step is important as it converts the free lime present in the fly ash,
to calcium hydroxide.†Further, the complete specification, at page 6 mentions that “A particular advantage of the bricks so obtained is that unlike",
conventional bricks, it is not required to soak the bricks in water during initial curing. The bricks may be kept in wet gunny bags and taken for drying",
after a predetermined period of time.†and “The strength of the brick was monitored after every 7 days. The final strength of the brick after 28,
days is 60-62 kg/cm2, which is higher than the normal brick.†Therefore, the claim of the appellant that the invention does have technical advance,",
cannot be negated.,
We have also looked at the claims of the cited prior art D1 (CN1857888-PRODUCTION PROCESS OF BUILDING BLOCK WITH HIGH,
FLYASH CONTENT1 and found the submissions of the appellant with regard to prior art, to be consistent.",
Hence, the refusal of the instant application by the respondent on the ground of lack of technical advance over the prior art and by that not",
acknowledging the inventive step is not well founded.,
We have looked at the existing set of claims (claims 1-4) of the instant application and are of the opinion that the features of ratio of mixtures,
defined in claim 4 such as wherein the fly ash and soda ash effluent are mixed in the ratio ranging from 50:50 to 80:20 should be incorporated in,
wherein/ Characterized clause of the principal claim; while retaining the preferable ratio of fly ash and soda ash effluent i.e. 70:30 in claim 4.,
We, therefore, direct the appellant to file the amended set of claims in accordance with paragraph 12 above, to the respondent within 3 weeks",
from the issuance of this order.,
We set aside the impugned order issued by the respondent dated 29/11/2017 and direct him to grant the patent in respect of the instant patent,
application based on the amended set of claims as directed above, within 3 weeks from the submission of the amended set of claims, by the appellant.",
Keeping in view the above facts and circumstances, the instant appeal is allowed. No cost.",