The Calcutta High Court recently held that patent cannot be denied to an invention citing health, public order or morality unless there is cogent scientific or technical evidence [ITC Limited v The Controller of Patents Designs and Trademark]. .Justice Ravi Kishan Kapur observed that Section 3(b) of the Patents Act is predicated on the intent principle and focuses on the intent behind the invention, not the effect. Section 3(b) of the Patents Act prevents the patenting of inventions that are intended for use or exploitation in a way that is contrary to ‘morality’ and ‘public order’ or causes ‘serious prejudice’ to human, animal or plant life. However, cogent reasoning and scientific evidence is required to reject patenting of inventions on those grounds.“The interaction of patent laws and ethics is an uncomfortable relationship and has always produced difficulties. In such circumstance, section 3(b) ought not to be interpreted to deal with all subjective concerns of morality, public order or health regardless of any scientific or technical evidence or any cogent reasoning,” the Court said. .The Bench rendered these findings while setting aside an order of the office of The Controller of Patents, Designs and Trademarks denying patent to an invention by ITC Limited. The company wanted to register its invention titled ‘A Heater Assembly to Generate Aerosol’.The company highlighted the increasing demand for handheld aerosol-generating devices which are able to deliver aerosol for user inhalation. It said that the invention is designed to provide a uniform heat distribution system throughout the aerosol-forming substrate present with an aerosol-generating article. However, the patent office rejected the application on the ground that the invention causes serious prejudice to human life, health, public order and morality citing its use in electronic cigarettes. .After considering the case, the Court said the preconceived and subjective notion that all tobacco products causes serious prejudice to human life and health is unsustainable without any reliance on scientific or technical evidence or any other supporting facts.The judge said that the tobacco products are not per se unpatentable in India and there must be a nexus between how the mind has been applied to the matters in issue and the conclusion based on the same. This is conspicuously absent in the order of the patent office, the Court held. “The finding that the subject invention is contrary to public order and morality is unreasoned, cryptic and without any basis. The fact that the Controller was of the view without consideration of any independent scientific or technical evidence that the usage of the invention affects public order and morality cannot be the basis for rejecting the invention,” the Court said. .It added that the Controller’s interpretation of Section 83(e) of the Patents Act, holding that the grant of a patent confers a consequential affirmative right to sell or commercialize the product is wrong. “The grant of a patent also does not confer upon the patentee the right to use, sell or otherwise manufacture the subject invention. Historically, patent rights have been treated as exclusionary rights or negative rights inasmuch as they only gives the patentee the right to prevent third parties from manufacturing the subject invention.”The Court also held that the Directive Principles of State Policy or the fundamental rights guaranteed under Article 14 of the Constitution have no role in the adjudication of the validity or invalidity of an invention.Ultimately, the bench ruled in ITC’s favour and directed the patent office to reconsider the case. .Senior Advocates Gaurav Pachnanda and J Sai Deepak acted for ITC Limited. They were instructed by Samik Mukherjee, Manosij Mukherjee, Amrita Majumdar and a team from S Majumdar & Co, and were assisted by advocate Threcy Joboy Lawrence.Advocate Sanjukta Gupta represented The Controller of Patents, Designs and Trademarks..[Read Judgment]
