Merck’s divisional patent application 4700/DELNP/2009 has been refused by the Delhi patent office vide an order dated 13th January 2016.
The parent application claims are related to an antibiotic compound and method of making the claimed antibiotic, while the divisional application as submitted by the agent of the Applicant was filed for a distinct invention directed to Streptomyces sp ATCC PTA 5316 and ATCC PTA 5317. In process of making the antibiotic compound claimed in the parent, the applicant has used Streptomyces sp ATCC PTA 5316 and ATCC PTA 5317.
The controller refused the divisional as she held that the claims of divisional application conflict with the claims of parent and that the divisional is not a proper divisional under section 16 of the Indian Patents Act.
As per the controller the claimed invention in parent application is related to cultivation of a Streptomyces sp. with ATCC# PTA-5316 (MA7327) or ATCC#PTA-5317 (MA7331) or a natural or artificial mutant thereof in a nutrient medium and recovering the Antibiotic Compound I from the fermentation broth. This technical advantage of isolated Streptomyces sp. having ATCC accession number ATCC# PTA-5316 (MA7327) or ATCC accession number ATCC#PTA-5317 (MA7331 ) in cultivation and fermentation for recovering antibiotic compound has already been claimed in parent application and no distinct Microorganism has been claimed in divisional application.