Refusal of patent application relating to ‘Soluble Foaming Composition’ set aside

The Madras High Court has recently set aside an order of the Controller of Patents refusing a patent application relating to a ‘Soluble Foaming Composition’, particularly a protein-free foaming composition. The Controller refused the patent on grounds of lack of inventive step, non-patentability under Section 3(e), and insufficiency of disclosure. The patent application had 46 claims, out of which five were independent claims.

The first claim of the application reads as follows:

“1. A foaming composition comprising :

a foaming powdered protein-free soluble composition comprising carbohydrate particles;

having a plurality of internal voids within the carbohydrate particles;

containing entrapped pressurized gas within the plurality of internal voids, said composition comprising greater than 98% carbohydrate and less than 1% protein, both on a dry-weight basis and said composition being formed by subjecting said particles to an external gas pressure exceeding atmospheric pressure prior to or while heating said particles to a temperature of at least the glass transition temperature.”

The Controller refused the patent application based on 4 prior art references. In response to the examination report and hearing notice, the patent applicant filed responses, but the Controller did not consider the same. In particular, the Court stated that the Controller failed to consider the fact that all prior art references had more than 5 percent protein while the protein percent in the claimed composition was less than one percent.

As the Controller did not consider the submissions of the applicant, the Court set aside the order and assigned the application for de novo consideration. The Court assigned the application to another patent officer asking the new officer to decide the same within 4 months.

Citation: Intercontinental Great Brands LLC & Anr. vs Assistant Controller of Patents and Designs, Madras High Court, 09th February, 2024, (T)CMA(PT) No.182 of 2023



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