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Calcutta High Court
Shaperon Inc. (Oa/6/2018/Pt/Kol) vs The Controller General Of Patents And … on 26 June, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
OIPD-8
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
(Intellectual Property Rights Division)
IPDPTA/68/2023
IA NO: GA/1/2023
SHAPERON INC. (OA/6/2018/PT/KOL)
VS
THE CONTROLLER GENERAL OF PATENTS AND DESIGNS, MUMBAI AND ANR.
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 26th June, 2025.
Appearance:
Mrs. Mitul Dasgupta, Adv.
Mr. K.K. Pandey, Adv.
Ms. Pooja Sett, Adv.
Mr. Teesham Das, Adv.
Ms. Mallika Bothra, Adv.
…for appellant.
Mr. Indrajeet Dasgupta, Adv.
Mr. Gourab Maiti, Adv.
…for the Controller.
The Court: This is an appeal under Section 117A of the Patents Act, 1970
arising out of an order dated June 15, 2017 passed by the Deputy Controller of
Patents & Designs, Kolkata in Patent Application No.4278/KOLNP/2009.
Briefly, the invention, titled “Biological Surfactant as Anti-inflammatory
agent and Tissue Preservative Solution” is an anti-inflammatory agent and a
tissue preservative solution comprising a biological surfactant which blocks a
reaction of a proinflammatory factor with a receptor by emulsifying the
proinflammatory factor.
2
On receipt of the request for examination, on 9 May, 2011 the above
application was examined. The applicant had filed 10 (ten) claims. The First
Examination Report (FER) was issued on 30 th December, 2014. Pursuant to the
above, a detail response against the objection was filed on December 17, 2015.
Thereafter, a hearing was offered to the appellant on March 1, 2017. The
hearing was finally concluded on April 13, 2017. The appellant had also filed
their Notes of Submissions before the authorities.
The short point raised in this appeal pertains to violation of the principles
of natural justice. It is contended on behalf of the appellant that in passing the
impugned order the Deputy Controller failed to consider and take into account
the expert evidence of Dr. Seung-yong Seong dated April 21, 2017. It is
submitted that despite reference to the said expert of Dr. Seong, the same was
neither discussed nor adverted to before passing of the impugned order.
On behalf of the Deputy Controller it is fairly submitted that the above
expert evidence by way of affidavit has been ignored and there is no discussion of
the same in the impugned order. In such view of the matter, the Deputy
Controller has no objection if the matter be remanded for hearing afresh.
A reading of the impugned order clearly demonstrates that there is no
reference to the above affidavit dated 21 April 2017 filed by Dr. Seong. The
Deputy Controller has neither discussed nor taken into account the said expert
evidence. A perusal of the affidavit would prima facie show that the appellant had
furnished expert evidence including experimental data to show the effect and
technical advancement of the subject invention. The said affidavit also seeks to
enumerate the surprising and advantageous effects of sodium taurodeoxycholate
3over other bile salts, such as sodium cholate or sodium deoxycholate in terms of
anti-inflammatory effects and cytotoxicity. In such circumstance, the affidavit
deserved consideration before passing of the impugned order.
In view of the above, the impugned order is unsustainable and set aside.
The matter is remanded to the Controller to decide the matter afresh in
accordance with law within three months from the date of communication of this
order and after taking into account the above affidavit. It is made clear that there
has been no adjudication on the merits of the case and all issues are left open to
be decided in accordance with law.
With the above directions, IPDPTA/68/2023 stands allowed.
The application being IA No.GA/1/2023 also stands disposed of in view of
the above directions.
(RAVI KRISHAN KAPUR, J.)
spal
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