- Case number
- C.A.(COMM.IPD-PAT) 323/2022
- Court
- Delhi High Court
- Date of judgment
- Judge
- Saurabh Banerjee C. A
- Outcome
- Remanded
Headnote
Refusal under section 3(d) set aside. The Controller had reasoned that once a device for a repair is made, the method of repairing with it is simply part of the manual of operation, so the method claim was the mere use of a known device. The Court held that section 3(d) contains four distinct categories, and that although the Controller placed the claim in the fourth, the mere use of a known process, machine or apparatus, the order nowhere identified what that known machine or apparatus was, nor cited any prior art from which the device implementing the method was known. No objection to novelty had been taken against the device claim in the same application, so the Controller had in effect acknowledged novelty and inventive step; a device claimed in the same application cannot be presumed known, and in any event what is relied on must be known before the priority date. Following D.S. Biopharma, a section 3(d) objection raised without identifying the known substance and without a proper opportunity to answer cannot sustain a refusal, and on Manohar and Agriboard the Patent Office must issue a speaking order reflecting application of mind.
Headnote by BRB Legal, written from the judgment: a summary for reference, not legal advice. Read the judgment itself before relying on it.