Probiotic Patent of Kibow Biotech Inc. upheld by the Madras High Court

The Madras High Court dismissed a writ challenging an Intellectual Properties Appellate Board (IPAB) order No. 262/2013 in respect of revocation proceedings ORA/29/2011/PT/MUM, for the Patent No.224100.

The impugned patent was granted to Kibow Biotech Inc., based on a PCT application filed claiming priority from US Patent Application No.10.672,622 filed on 30.09.2003.

Claims of the impugned patent are directed to a composition for augmenting kidney function in a subject comprising at least one probiotic bacterium wherein said probiotic bacterium selected from Streptococcus thermpphilus at about 5 billion to about 20 billion colony forming units of said atleast one probiotic bacterium other ingredient being selected from vitamin, mineral, carbohydrate, protein and fats. A revocation was filed by La Renon, which was dismissed by the IPAB and patent upheld.

The Madras High Court upheld the IPAB’s order maintaining the patent, dismissing the revocation and held that:-

  1. The patent having been granted, the onus is on the person wishing to challenge its validity. That onus has to be discharged on a balance of probabilities. The onus of establishing invalidity on any of the grounds cannot be shifted to the patentee.
  2. The Petitioner had an opportunity to let in evidence of an expert to substantiate the grounds for revocation. However, the petitioner failed to do so. The petitioner has not produced any evidence of an expert before the Appellate Board to substantiate its plea that the invention is a mere “admixture” or that the Patent was liable to be revoked on the grounds stated in the petition filed by it.
  3. Under Section 114 of the Indian Evidence Act, 1872, there is a presumption that all judicial and official acts have been regularly performed and it will be for the party who challenges such regularity to plead and prove his case.
  4. Though the impugned patent had only 10 claims at the time of grant of patent, the petitioner had questioned all the 20 claims which were originally filed while filing the patent application. Thus, the challenge itself was vague and without proper reading of the specification and the claim
  5. For Novelty , the Court held that the petitioner attempted to piece together a number of prior documents in order to produce an anticipation of the invention which is impermissible for the purpose of defeating claims.
  6. Further, the ground relating obviousness was raised not in the pleading before Appellate Board. It was made for the first time at the time of hearing before the Appellate Board.

The Court held that the petitioner had not made out a case before the Appellate Board for revocation of the patent, and the court found no reason why the request of the petitioner should be entertained to remand the case to give it third opportunity to establish the case.

The Court also made it very clear that there is a clear distinction between the scope of review in a writ jurisdiction and an appeal. The Court held that it cannot substitute the finding of facts arrived by the Appellate Board. The Court can only examine whether there was any infirmity in the procedure adopted by the Appellate Tribunal while passing the impugned order. The Court did not find any infirmity in the procedure adopted by the Appellate Tribunal while passing the impugned order and therefore dismissed the Writ.

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