,
D.P.S. Parmar, Technical Member",
1. This is an application for revocation of the patent No. 200285 bearing title ""Low Glycemic Sweets"" granted to Krishnamachari Ramu and Ms. R.",
Lavanya on 01.05.2006.,
2. A suit for infringement of this patent 200285 is pending. Hon'ble High Court of Madras in C.S. No. 495 of 2006 has granted an interim injunction for,
infringement of Patent No 193899 and 200285 (the patent in question). The applicant being the affected person consequently qualifies as an interested,
person under Section 64 of the Patents Act 1970.,
3. This case came before us on 30.08.2011. Shri A. Prabakara Reddy, Advocate appeared for the applicant and Shri A.A. Mohan, Advocate",
appeared for the respondent.,
4. This invention relates to Sweets, particularly the Indian sweets of low Glycemic index, especially for consumers with diabetics or with diabetic",
tendencies, maintaining the same organoleptic, textural and visual proprieties of sweets conventionally produced using cane sugar.",
5. According to the learned counsel for the respondents the attempts have been made in the past to produce sweets with artificial sweeteners such as,
Aspartame etc., but have not been widely accepted as they result in products with bitter taste. Further, it has not been possible to prepare artificial",
sweetener based syrups with desirable consistency and viscosity as they decompose when cooked at elevated temperatures resulting in loss of their,
characteristics. As an alternative, the artificial sweetener is added to the end unsweetened food product just before serving. However, this practice",
has not been a great success as it was reported that the same organoleptic properties of sweets are not maintained. The complete specifications,
disclosed that the other natural sugar substitute that was found is LEVULOSE which is a sugar a Low Glycemic Index product G123 - compare,
Glucose 100). However, the experiments of making sweets using levulose faced a peculiar problem of undesirable browning due to maillard reaction",
and caramelization of levulose when heated to elevated temperatures particularly due to reaction between carbohydrates and protein. Uses of other,
sugar based alcohols in the production of confectionery products have also not been successful as they have been rejected by consumers due to their,
laxative properties and low level of sweetness. Literature has examples in which certain chocolates, ice creams and biscuits have been prepared from",
set of nutritive / non-nutritive sweeteners. However, such confectioneries do not use syrups cooked at elevated temperature as in the case of Asian or",
Indian sweetmeats.,
6. Therefore there is a longstanding need to produce traditional Indian/Asian sweets with low Glycemic Index suitable for all consumers and especially,
for consumers with diabetics or with diabetic tendencies, maintaining the same organoleptic, textural and visual properties of sweets conventionally",
produced from cane sugar.,
7. The first object of the invention is related to sweets prepared by using levulose a natural sugar substitute of low Glycemic Index, by overcoming the",
abovementioned inherent drawback of levulose namely browning at elevated temperature.,
8. In another embodiment of the invention wherein the sweets prepared does not require the sweet syrup for obtaining sweetness, the levulose",
preferably in powder form is added at the end of preparation of such sweets rather than during the heating process as is conventionally the method of,
preparation adopted while using cane sugar. This is in order to prevent the browning of levulose.,
9. The next object of the invention is to provide Indian sweet variety with low Glycemic Index (GI) suitable for all consumers and especially for,
consumers with diabetics or with diabetic tendencies, maintaining the same organoleptic properties textural and visual properties of sweets",
conventionally prepared or produced using cane sugar.,
10. The next object of the invention is related to Indian sweet variety, which apart from being prepared or produced by using a natural sugar substitute,",
namely Levulose optionally containing other nutritive and or non-nutritive sweeteners without the problem of browning during or after the processing at,
elevated temperatures.,
11. The next object of the invention is related to syrup (s) of Levulose of variable viscosity and high consistency without browning and stable without,
decomposing when exposed to elevated temperatures for prolonged period at the same time maintaining the organoleptic and visual characteristics of,
sucrose based syrups making such Levulose based syrups them suitable for the preparation of sweetmeats of low Glycemic Index.,
12. The claims of the specification are given below:,
1. A low glycemic sweets an Indian sweet in particular which can be consumed by any person especially by the diabetic patient or a person showing,
the symptoms of diabetics characterized in that the organoleptic properties, texture and visual properties are maintained equal to that of any",
conventional sweet wherein Levulose also known as Fruit sugar, a natural product of Low Glycemic Index either in crystalline, amorphous or syrup",
form is used either alone or with other nutritive or non nutritive products of Low GI, in such preparation characterized in that the preparation is",
optionally done with appropriate ratio of carbohydrate and protein in the beginning preferably under inert gas/se blanket or high pressure steam, or",
vacuum depending upon the nature of the sweet to be prepared/manufactured.,
2. The low glycemic sweet as claimed in claim 1 wherein maillard reaction/caremelization reaction is minimized.,
3. The low glycemic sweet as claimed in the preceding claims wherein when the paneer, optionally made into desired sized and shaped, is required to",
be immersed in Levulose syrup, the said syrup with desired concentration and viscosity as herein described is prepared preferably under the inert gas",
(es) blanker.,
4. The low glycemic sweet as claimed in claim 1 and 2 wherein the Levulose powder is added to the unsweetened cooked sweetmeat at the end of,
preparation.,
5. The low glycemic sweet as claimed in claim 1 is RASGULLA.,
6. The low glycemic sweet as claimed in claim 1 is RASMALAI.,
7. The low glycemic sweet as claimed in claim 1 is GULAB JAMUN,
8. The low glycemic sweet as claimed in claim 1 is BADAM KATLI,
9. The low glycemic sweet as claimed in claim 1 is PISTA,
10. The low glycemic sweet as claimed in claim 1 is CASHEW KATLI,
11. The low glycemic sweet as claimed in claim 1 is DOODH PEDA,
12. The low glycemic sweet as claimed in claim 1 is KESAR PEDA,
13. The low glycemic sweet as claimed in claim 1 is CHOCOLATE MILK BURFI PEDA,
14. The low glycemic sweet as claimed in claim 1 is JANGIRI,
15. The low glycemic sweet as claimed in claim 1 is BASUNDHI,
16. The low glycemic sweet as claimed in claim 1 is LADDOO,
17. The low glycemic sweet as claimed in claim 1 is MYSORE PAK,
18. The low glycemic sweet as claimed in claim 1 is VARIOUS HALWAS,
19. A low glycemic sweet, an Indian sweet in particular is substantially as herein described and exemplified.",
Petitioners Case,
13. Shri Prabakara Reddy counsel for the applicant in his argument before us stated that the specifications disclose neither any invention nor any,
inventive step in the specification. The counsel for the applicant relied on the grounds of revocation given under Section 64(1)(d), (f), (g), (h) and (q)",
pleaded for revocation of the patent.,
The grounds on which the applicant relied are as follows:,
Subject matter of the Patent is not novel,
Subject matter of the Patent is not involves an inventive step,
Subject matter of the Patent is not patentable Subject matter of the Patent has no industrial applicability Subject matter of the Patent is not a technical,
advancement over the prevailing know-how,
Subject matter of the Patent is obvious.,
Lack of Inventive step (64 (1)(d),
14. The counsel for the applicant argued that the ""Patentee herein having admitted in the complete specification that already the Indian sweets with",
sugar made from cane/fructose being available, the patent granted is liable to be revoked. It is seen and admitted that the present invention is for the",
alleged product viz. Indian sweets made using the process claimed for alleged invention under Patent No. 193899. It is further seen though the,
patentees claim for invention in respect of the alleged process for preparation of non-browned fructose syrup, the examples given for preparation of",
various Indian sweets which is part of the specification for the alleged invention makes the said alleged process of making non-browning fructose,
syrup as optional. Therefore the patentees themselves admit that absolutely there is no inventive step either in the present patent or in the patent under,
No. 193899 for the alleged process which is said to be used in the present alleged invention for the product. In fact, the patentees extracted the",
manufacturing process as made out under patent No. 193899 as part of the specifications.,
Patent is obvious,
15. The counsel for the applicant submitted that the patentee misled the Controller by stating that the browning of sweet is due to maillard reaction and,
caramelisation of levulose when heated to elevated temperatures particularly due to reaction between carbohydrate and protein which is,
disadvantageous and undesirable. In fact, the caramelisation is a natural process. The counsel for the applicant submitted that as per the",
caramelisation details given in Encyclopedia of food and culture ""Caramelisation and maillard reactions (responsible for browning) requires",
temperatures that cannot be reached when water is present (the boiling point of water limits the cooking temperature to 212oF or less). Caramelisation,
stars at around 310°F, maillard reactions even higher"". Therefore the claim for minimizing Caramelisation and maillard reactions at lower",
temperature is misleading and not correct. In fact, caramelisation in the fructose forms when fructose is heated at about 110°C. as per the",
established scientific principles.,
Further Sugar made of cane also undergoes the process of caramelisation but only at little higher temperature than the fructose. Thus caramelisation,
adds to certain flavor and colour which is desirable for any sweet. It is seen that the patentee has given several processes for preparation of non-,
browned fructose syrup. The applicant takes strong objection to this particularly even in the sweets prepared with sugar made from cane also,
undergoes the process of caramelisation. The detailed descriptions as given by the patentees in respect of the alleged invention do not disclose any,
invention and it is also not new but it is obvious and normal practice in preparation of Indian sweets as all the descriptions given are in the normal,
practice of preparing and making Indian sweets. The patentee cannot claim any right for invention. It is very interesting that one of the processes,
described in the complete specification is heating solution of fructose in closed chamber with outlet for steam release in the range of 2 to about 12,
times the atmospheric pressure and producing viscosity from 1.12 CPS upto 1,00,000 CPS. This is too wide and vague and involves no invention or",
new inventive step. Interestingly another process described in the specification is heating fructose solution at low pressure at 60-80 oC. In fact,",
caramelisation in the fructose forms when fructose is heated at about 110oC as per the established scientific principles. Therefore it is clearly seen,
that the complete specification does not give any new method or process or teaches any method or process for making fructose syrup as browning is,
not likely to occur in any case in presence of water as the cooking temperature will not exceed 100°C.,
Common knowledge 64 (i) (q),
16. According to counsel for the applicant the description of the invention as contained in the specification being already in the common knowledge,
and is being extensively practiced in the industry, the patentee cannot claim to be the inventor of the said process. Moreover, the said disclosures are",
SUGAR,FRUCTOSE
Take 10 litrs of milk,Take 10 ltrs of milk
Add approx. 1kg of sugar
Heat the above milk to boil
continuously for 30 mts.",
,
Mix it well till it comes to 35%
of l0ltrs","Heat the above milk to boil
continuously for 30 mts.
,
,"Mix.it well till it comes to 35%
of 10 ltrs
now add 1 kg of ghee in 3
intervals and allow the ghee to
get mixed along with the kova
for 10 mts by reducing the
flame. Add approx.5 grams of
elachi powder Milk haiwa is
ready to serve.",
,"now add 850 grams of fructose
to the above now add 1 kg of
ghee in 3 intervals and allow
the ghee to get mixed along
with the kova for 10 mts by
reducing the flame. Add
approx. 5 gms of elachi
powder Milk halwa made out
of fructose is ready to serve.
,
,
KOVA BURPHEE, MILK
BURPHEE, MALAI PED
Take 10 Itrs of milk Add
approx. 1kg of sugar Heat the
above milk to boil continuously
for 45 mts. Mix it well till it
comes to 27% of 10 ltrs","Take 10 ltrs of milk
A
,"Heat the above milk to boil
continuously for 45 mts.
Add approx.5 grams of elachi
powder","Mix.it well till it comes to 27%
of 10 ltrs reduce the flame and
Add approx. 850grams of
fructose, mix it well till such
time fructose is evenly mixed
Now put the above
preparation in the S.S. tray
allow the preparation to come
room temperature. Cut it to
the required shape and size.
Now KovaBurphee is ready to
serve.","Add approx.5 grams of elachi
powder
Now put the above preparation
in the S.S. tray allow the
preparation to come room
temperature.
Cut it to the required shape
and size.
,
,"Now KovaBurphee is ready to
serve.
,
,
,
CHOKOLATE BURPHEE,
Take 10 !trs of milk
Add approx. 1kg of sugar
Heat the above milk to boil
continuously for 45 mts.
Mix it well till it comes to 35%
of 10 ltrs Now add 60 grams
of chocolate powder and mix it
properly till the consistency is
27 of the above
Add approx.5 grams of elachi
powder Now put the above
preparation in the S.S. tray
allow the preparation to come
room Temperature.
Cut it to the required shape
and size.
Now Chokolate Burphee is
ready to serve.","Take 10 Itrs of milk
Heat the above milk to boil
continuously for 45 mts.
Mix it well till it comes to 27%
of 10 ltrs now add 60 grams of
chocolate powder to the above
reduce the flame and Add
approx. 850 grams of fructose
is mix it well till such time
fructose is evenly mixed
Add approx.5 grams of elachi
powder Now put the above
preparation in the S.S. tray
allow the preparation to come
room temperature. Cut it to the
required shape and size.
Now Chokolate Burphee is
ready to serve.
KESARIPEDA,
Take 10 Itrs of milk,Take 10 ltrs of milk
Add approx. 1kg of sugar,
Heat the above milk to boil
continuously for 45 mts.","Heat the above milk to boil
continuously for 45 mts
Mix it well till it comes to 35%
of 10 ltrs","Mix it well till it comes to 27%
of 10 ltrs
Now add 1/2 gram saffron and
mix it properly till the
consistency is 27% of the
above.","now add of to the above
reduce the flame and Add
approx. 850 grams of fructose,
mix it well till such time
fructose is evenly mixed
Add approx.5 grams of elachi
powder allow the preparation
to come room temperature.","Add approx 5 grams of elachi
powder, allow the
preparation to come room
temperature.
Now put the above
preparation in the available die
Put it in the die and serve","Now put the above preparation
in the available die and serve.
RASAGULLA,
40 Itrs of milk boiled upto 100
degrees,","40 ltrs of milk boiled upto 100
degrees,
Remove the milk from fire
allow it to come to 70 degrees
Add required amount of
venigar (approximately 100ml)
along with plain water","Remove the milk from fire
allow it to come to 70 degrees
Add required amount of
venigar (approximately 100 ml)
along with plain water
Mix it well till the chenna
separated from milk
Using white mustin cloth filter
swill the entire wafer
removed,","Mix it well till the chenna
separated from milk
Using white mustin cloth filter
swill the entire water-removed,
To the above preparation add
approx. 35 grams of raw
maida","To the above preparation add
approx. 35 grams of raw
maida
Kneeding the above
preparation till such time till
getting properly mixed","Kneeding the above
preparation till such time it
getting properly mixed
ZEERA 1 FOR COOKIN
RASAGULLA",G
Take 5kgs of sugar add 7 Itrs
of water mix properly till such
time sugar is completely
dissolved","Take 5kg of fructose add 15
Itrs of water mix it properly till
such time fructose is
completely dissolved.
Allow the syrup to boil 105
degrees now make the chenna
into smaller bolls (required
shape and size)","Allow the syrup to boil 100
degrees now make the chenna
into smaller bolls (required
shape and size)
Put these bolls into the boiling
zeera syrup and cook it for 15
mts.","Put these bolls into the boiling
zeera syrup and cook for 15
mts.
Add little amount of 15 grams
of maida with whave water
and sprinklet while the syrup is","Add 15 grams of maida with
whave water and sprinklet
while the syrup is boiling and
boiling and rotate the syrup.
Till such time the chenna is
cooked","rotate the syrup continuously
Till such time the chenna is
cooked
SUGAR SYRUP FOR
SOKING","SUGAR SYRUP FOR
SOKING
Take 5kgs of sugar add 7 Itrs
of water mix it properly till
such time sugar is completely
dissolved","Take 7 1/2 Itrs of water and
boiled it to 100 degrees put the
flame off
Now add 4 kgs of fructose in it
and mix it till such time
fructose is completely
dissolved.
Allow the syrup to boil 100
degrees","Now switch the flame on and
keep it in a mild heat (100
degrees) and allow the above
preparation to boil till the
required consistency.
Now add 50ml of raw milk
into the syrup to remove the
impurities available in the
sugar.","Now soak the prepared
rasagulla in the above prepared
zeera
Allow the syrup to boil and
remove the impurities floating.
1 Repeat the same till such
time the syrup is clear",
To the consistency what you
require",
Now soak the prepared
rasagulla in the above
preparedzeera.",
RASAMALA,
40 Itrs of milk boiled upto 100
degrees,","40 ltrs of milk boiled upto 100
degrees,
Remove the milk from fire
allow it to come to 70 degrees","Remove the milk from fire
allow it to come to 70
degrees
Add required amount of
venigar (approximately100ml)
along with plain water","Add required amount of
venigar (approximately 100 ml)
along with plain water
Mix it well till the chenna
separated from milk","Mix it well till the chenna
separated from milk
Using white mustin cloth filter
swill the entire water removed,","Using white mustin cloth filter
swill the entire water removed,
To the above preparation add
approx. 35 grams of raw
maida","To the above preparation add
approx. 35 grams of raw
maida
Kneeding the above
preparation till such time it
getting properly mixed","Kneeding the above
preparation till such time it
getting properly mixed
ZEERA 1 FOR COOKIN
RASAMALAI",G
Take 5 kgs of sugar add 7 Itrs
of water mix it properly till
such time sugar is completely
dissolved","Take 4kg of fructose add 12
Itrs of water mix it properly till
such time fructose is
completely dissolved
Allow the syrup to boil 105
degrees now mark the chenna
into smaller bolls (required
shape and size)","Allow the syrup to boil 100
degrees now make the chenna
into smaller bolls (required
shape and size)
Put these bolls into the boiling
zeera syrup and cook it for 15
mts.","Puts these bolls into the boiling
zeera syrup and cook it for 15
mts.
Add little amount of 15 grams
of maida with whave water
and sprinklet while the syrup is
boiling and rotate the syrup.","Add 15 grams of maida with
whave water and sprinklet
while the syrup is boiling and
rotate the syrup continuously
Till such time the chenna is
cooked","Till such time the chenna is
cooked
SUGAR SYRUP FOR
SOKING","SUGAR SYRUP FOR
SOKING
Take 5kgs of sugar add 7 Itrs
of water mix it properly till
such time sugar is completely
dissolved","Take 1 ½ Itrs of water and
boiled it to 100 degrees put
flame of
Allow the syrup to boil 100
degrees","Now add 750 grams of
fructose in it and mix it till such
time fructose is completely
dissolved.
Now add 50ml of raw milk
into the syrup to remove the
impurities available in the
sugar.","Now switch the flame on and
keep it in a mild heat (100
degrees) and allow the above
preparation to boil till the
required consistency.
Allow the syrup to boil and
remove the impurities floating.",
Repeat the same till such time
the syrup is clear.",
To the consistency what you
requir",
Now soak the prepared
rasamalai in the above
prepared zeera","Now soak the prepared
rasamalai in the above
prepared zeera.
Take 5 Itrs of milk boil it to 70,
add 1 gram of saffron","Take 5 ltrs of milk boil it to 70,
add 1 gram of saffron
Cool the above milk to room
temperature","Cool the above milk to room
temperature
Now remove the rasamalai
from zeera squeeze it then
soak it in the above prepared
milk.","Now remove the rasamalai
from zeera squeeze it then
soak it in the above prepared
milk.
28. The respondent in the counter and as per the submissions made by Shri. A.A. Mohan contended that product patent relating to Low Glycemic No.,
200285 is inventive. For example, where the paneer balls are cooked in sugar syrup, whereas, cooking of paneer balls in fructose syrup is done with",
continuous purging of the inert gas Nitrogen. In alternative method for making rasagulla, the method of cooking paneer balls separately is novel and as",
inventive step, at first the protein mass (paneer for rasagulla and rasamalai) is cooked in water and after cooling, the same is added in fructose syrup",
separately made. In the example of Basundi and Pedas and Burfis, fructose is added after the sweet mass is removed from fire which is different",
from the methods which are adopted conventionally wherein sugar is added right in the beginning along with khoa and heated. If this method is,
practiced for the manufacture of Low Glycemic Peda or Burfi using fructose, it will immediately brown due to Maillard Reaction and Caramelization.",
The same also hold goods for Badam, Pista, Cashew Kadli, Mysore Pak and Hal was.",
29. The respondent submitted that by not adding Levulose/Fructose right during the initial stages of cooking and adding it separately after the cooking,
of the sweet mass has been done and it has been removed from fire, the respondent claims that what they are doing here involves four things:",
1 Firstly, they alter the Reaction Temperature during the introduction of Levulose to the sweetmeat.",
2 Secondly, they separate the Protein and Carbohydrate elements during the cooking process thereby eliminating the scope of Maillard Reaction and",
Caramelization to occur.,
3 Thirdly, they significantly reduce the Reactivity Period or Time during which Maillard reaction and Caramalization can occur.",
4 Fourthly and most importantly, by altering or lowering the temperature at which levulose is added to the sweet, the Water Activity of the sweetmeat",
is alreterd. Every product has water content. Water Activity is basically the vapour pressure of water in a substance compared to the vapour pressure,
of pure or distilled water at the same temperatures. As the temperature increases, the likelihood of Maillard reaction browning a product increases.",
Therefore by adding the levulose at lower temperatures, the water activity is lowered. By lowering Water activity, Maillard reaction is thus prevented.",
The respondent submitted that they are 1) Altering the Reaction Temperature, 2) Separating or balancing the Carbohydrate / Protein ratio during the",
cooking process, 3) Significantly reduce the Reactivity Period and 4) Reducing the Water Activity thus eliminating Maillard Reaction. Therefore, by",
this Inventive process of introducing fructose at a later stage, they are achieving the above mentioned four conditions of Altered Reactive",
Temperatures, Balancing of Protein/Carbohydrate Ratio, Reduced Reactivity Period and Reduced Water Activity which lead to the prevention of",
Maillard Reaction and Caramelization. This is definitely an invention.,
The respondent relied on the following case laws,
(i) In M/s. Bishwanath Prasad Radhey Shyam Vs. M/s. Hindustan Metal Industries, (1979) 2 SCC 511 where Justice Sarkaria, held that ""To be",
patentable, the improvement or the combination must produce a new result, or a new article or a better or cheaper article than before. The",
combination of old known integers may be so combined that by their working interrelation they produce a new process or improved result. It is not,
enough, said Lord Dave in Rickmann Vs. Thierry (1896) 14 Pat. CA. 105, that the purpose is new or that there is Novelty in the application, so that",
the article produced is in that sense new but there must be Novelty in the mode of Application. By that, I understand that in adopting the old",
contrivance to the new purpose, there must be difficulties to be overcome, requiring what is called invention, or there must be some Ingenuity in the",
mode of making the adoption.,
In this case, that",
New Article is the Low Glycemic Indian Sweets for Diabetics and Health Watchers,",
The Difficulties they have overcome are the difficulties of Maillard Reaction and Caramelization.,
And the Novelty or Ingenuity is their method of cooking the protein and the carbohydrate separately to overcome the problem of Maillard Reaction,
and Caramelisation,
Therefore, this embodiment of the Patentee's Invention fulfills all the requirement of being considered Novel and Inventive.",
30. It was also contended that the use of levulose in place of sugar is not a mere substitution. Levulose does not react in the same manner as Sugar,
because of its inherent problems of Maillard Reaction and Quicker Caramelization and therefore it cannot be called that it is a mere replacing of,
Levulose of Sugar.,
31. The respondent submitted that in this case, the use of Levulose in the Production of Low Glycemic Indian sweets, the entire process differs from",
the Traditional method of preparing regular sweets. The differences between the Patentee's methods and the Traditional Method of Producing regular,
sweets include:,
a. Use of Inert Gas,
b. Use of Steam and High Pressure,
c. Use of Vacuum or Low Pressure,
d. Balancing of Reaction Time, Reaction Temperature, Water Activity of the sweetmeat etc.",
e. Balancing of the Protein-Carbohydrate Ratio during the Reaction Temperature,
When so many Production Processes differ completely, it clearly proves that the invention is not a mere substitution of Sugar by Levulose and the",
Patentee's Process does involve definite Inventiveness.,
32. The respondent submitted that Levulose is 1.7 - 2 times sweeter than normal sugar. This means, then, that it is enough if half the quantity issued or",
the sweet will become too sweet. The respondents claim that they use lesser quantities but achieve the same textural and organoleptic properties as,
Regular Sweets made with Sugar. This itself is a big challenge and achieving it is itself worthy of patent.,
33. The respondent submitted that in pharmaceutical language, this is achieving ""Similar Therapeutic Effect with Lower Dosage."" This is definitely",
worthy of Patent.,
34. The respondent submitted that one final reason why it is not merely substituting Levulose for Sugar lies in the fact that the Petitioners could not,
produce non browned low glycemic sweets even when they infringed upon the patentee's invention. The patentees have proven and submitted at the,
Hon'ble High Court of Madras samples of their Low Glycemic Rasagulla which were totally browned. It is an indisputable evidence of their failure to,
produce Non-browned Low Glycemic Indian Sweets that is submitted to the Hon'ble High Court of Chennai. It was against this infringement by the,
Petitioners Adayar Ananda Bhawan against which the Patentees have won the interim injunction. If it was only a mere replacement and if the,
Patentee's invention held No. inventiveness, then why could they, ie. Adayar Ananda Bhavan Not make Non-browned Low Glycemic Sweets?",
35. The respondent contended that the very application of fructose in the manufacture of low glycemic Indian sweets has not been thought of by,
anybody and hence is achieved by the Patentee for the First Time and that by itself is Patentable.,
The respondents referred to Ajay Industrial Corporation Vs. Shiro Kanao of Ibaraki city ALL INDIA REPORTER 1983 Delhi 496, -It was held that,",
A new and useful application of an old principle may be good subject matter. An improvement on something known, may also afford subject matter,",
so also a different combination of matters already known. A patentable combination is one in which the component elements are so combined as to,
produce a new result or arrive at an old result in a better or more expeditious or more economical manner. If the result produced by the combination is,
either a new article or a better or cheaper article than before, the combination may afford subject matter of a patent.",
They also relied on Lallubhai Chakubhai Jariwala Vs. Shamaldas Sankalchand ALL INDIA REPORTER AIR 1934 Bom 407 at 414,",
The respondent submitted that in this case, it has been proven that their invention of cooking the sweetmeat separately or adding fructose after the",
heating process turned that which was practically useless i.e. a sweetmeat unfit for consumption due to browning due to Maillard Reaction and,
Caramelization into that which is very useful and very important i.e. Low Glycemic Indian Sweets Suitable for Diabetics. In this case, therefore, the",
results are so great that they are subject of patent.,
Therefore, the Patentees have Proven Beyond Doubt the inventiveness of all the methods of preparation of Low Glycemic Sweets and the",
Inventiveness in all the Examples given in the Product Patent.,
They referred to the following extract in Parkes Vs. Cocker (1929) 46 RPC 241 at 248 ""The truth is that, when once it had been found that the",
problem had waited solution for many years, and that the device is in fact novel and superior to what had gone before, and has been widely used and",
used in preference to alternative devices, it is I think, practically impossible to say there is not present that scintilla of invention necessary to support",
the patent.""",
So the respondent contended the Patentees have established the inventiveness in both the Process and Product Patents the need for Low Glycemic,
Indian Sweets suitable for Diabetics has been felt for so long and the Patentee was the First and Only person to supply that want and has also,
evidenced commercial success. Therefore the revocation should be dismissed,
36. Counsel for the respondent submitted that No Prior Art is available before the Invention of the Patentees on preventing Maillard Reaction and,
Caramelization of Levulose and Manufacturing Low Glycemic Indian Sweets using Levulose.,
Not common or public knowledge,
37. The respondent contended that in fact, the petition has not shown or attached any prior document to show that the impugned patent was already",
known to the public knowledge as on the date of the patent and the person skilled in the art was aware of the said granted patent showing the,
common general knowledge.,
In the ruling by the Court of Appeal in General Tire Vs. Firestone Tire Ltd (1972) RPC 457, at 497-498 is even more apt: ""the act requires the Court",
to make a finding of fact as to what was, at the priority date included in the state of the art and thus to find again as a fact whether, having regard to",
that state of the art, the alleged inventive step would be obvious to a person skilled in the art.",
38. Considering the above case law, it is to be noted clearly, that comparison with the prior art can be done only when the prior art documents have",
been cited or attached or enclosed for reference, but the petitioner has only made bald statements and has totally failed to attach or enclose or even",
cite any of the prior art disclosure documents which are very necessary for considering the ground of ""Obviousness"" or ""Inventive Step"" and in the",
absence of the same, the said ground cannot said to have been established to revoke the patent.",
Common General Knowledge"" and ""Criteria for the same"": It is important to have a clear understanding of the meaning of the common general",
knowledge. It is the background technical knowledge available to all in a particular trade while doing or carrying out a product development activity.,
The common general knowledge as described by JUSTICE Laddie in Raychem Corp's Patents [1998] RPC 31 at 40, ""The common general",
knowledge is the, technical background of the notional man in the art against which the prior art must be considered...It includes all that material in the",
field he is working in which he knows exists, which he would refer to as a matter of course if he cannot remember it and which he understands is",
generally regarded as sufficiently reliable to use as a foundation for further work or to help understand the pleaded prior art.,
39. In respect of the petitioner claim that ""Traditional Indian Sweets are Common Knowledge because they have been known for many years.",
Similarly Fructose is also Common General Knowledge because it has been known for many years."", the respondent submitted that this is where",
petitioner goes sadly wrong because the Patentees are not claiming patent over Traditional Indian Sweets or Fructose as per se,
40. The respondent contended that the scope of the patent refers to Low Glycemic Indian Sweets using Levulose overcoming the problems of,
Maillard Reaction and Caramelizaiton.,
41. The respondent contended that nobody, skilled in the art, has been able to overcome the reactions of Maillard Reaction and Caramelization of",
Levulose Based Sweetmeat using the Common General Knowledge before the grant of the Patent and Produce Low Glycemic Indian Sweets for,
Diabetics.,
42. The respondent contended that until the Invention of the Patentee, there has been no way found to eliminate Maillard Reaction and Caremelization",
of Levulose/Fructose when used to manufacture Low Glycemic Indian Sweets. Nor has the Petitioner submitted any Documents to prove Prior Art.,
Hence the Patentee is the First and the True Inventor of Low Glycemic Indian Sweets for Diabetics Using Levulose/Fructose.,
Obviousness,
43. The respondent submitted that in this case, there has been no Obviousness for no person skilled in the art or no non-inventive mind has been able",
to overcome the problems of Maillard Reaction and Caramelization of Levulose based Indian Sweet and Introduce Low Glycemic Indian Sweets for,
Diabetics. This itself shows that the patent Involves definite Inventiveness and is not mere replacing of Levulose instead of Sugar,
The respondents relied on ""High Court of Justice, Chancery Division, Patent Courts in 2007 ENGLAND WALES HIGH COURT 2636 (Pat)",
between Mr. Aloys Wobben and Vestas Celtic Wind Technology Ltd.,"" where it was pointed out that the question of obviousness involves analysis of",
the following four steps as stated in the famous 1985 RPC 55 Wind Surfing International Inc. v. Tabur Marine Great Britain Limited.,
The four steps are:,
1. Identify the notional-person skilled in the art-and the relevant common general knowledge of that person,
Here, the -person skilled in the art-is a regular sweet maker and the common general knowledge of that person has only to do with technicalities while",
using regular sugar. Infact, even scientists have not been able to overcome the problems of Maillard Reaction and Caramelization before the invention",
of the Patentee.,
2. Identify the inventive concept of the claim in question or, if it cannot be done, construe it.",
In this case, the Inventive Step is the 'Manufacture of Low Glycemic Indian Sweets using Levulose by overcoming its innate tendencies to Brown due",
to Maillard Reaction and Caramelization'.,
3. Identify if any of the differences existing between the matters cited as forming state of the art and the inventive concept of the claim or the claim,
as construed.,
The state of art knowledge before the Invention had nothing to do with the manufacture of Low Glycemic Indian Sweets. The knowledge stopped,
with using conventional sugar/jaggery which are HIGH GLYCEMIC in nature.,
4. Ask whether, when viewed without any knowledge of the alleged invention as claimed: do those differences constitute steps which would have",
been obvious to the person skilled in the art or do they require any degree of invention?,
It was impossible to avoid Maillard Reaction and Caramelization of Fructose based sweet when heating and required the Invention of the Patentee.,
Therefore, it has been established before the Board that it was not obvious for a person skilled in the art to be able to overcome the reactions of",
Maillard Reaction and Caramelization and produce Low Glycemic Indian Sweets suitable for Diabetics. This is the reason why nobody has come out,
with Low Glycemic Indian Sweets suitable for Diabetics despite three facts:,
1 Traditional Indian Sweets have always been known,
2 Existence of fructose has been known for many years,
3 Diabetic Population is a Huge One and Diabetic Market has great potential,
Despite the above facts, nobody had come out with Low Glycemic Indian Sweets suitable for diabetics for it was not obvious before the Invention of",
the Patentee.,
Economically significant, industrially applicable & commercial success",
In Indian Patent law, ""inventive step"" is defined under section 2(1) (j) & 2(1) (ja) of the Act respectively wherein;",
Sec. 2(1)(ja) ""inventive step"" means a feature of an invention that involves technical advance as compared to the existing knowledge or having",
ECONOMIC SIGNIFICANCE or both and that makes the invention not obvious to a person skilled in the art;,
The respondents submitted that the inventive step of using fructose in the preparation of traditional Indian sweets precluding Maillard reaction at the,
elevated temperatures is an economically significant technical invention.,
The respondents submitted that they are the first and true inventors of this process and also made this process commercially successful and the,
Industrial application viable.,
In this respect the following case laws were shown that ""commercial success and long felt want or need"" can support a case of inventiveness;",
In Wildey & Whites Vs. Freeman & Letrik [1931] 48 RPC 405 at 414, it was held that, ""commercial success which is shown to be due to the precise",
improvement, the subject of the specification ought to have considerable weight in regard to such a matter...."".",
The respondent submitted that only because this Invention is economically significant and Industrially Applicable has the Patentee's organization been,
able to build the Brand ""DIABETICS DEZIRE"" and obtain ISO 22000 / HACCP Certification from no less an Organisation than TUV SUD",
(Germany) known for its highest standards in Quality. The patentee could not have obtained the ISO 22000 / HACCP Certification from TUV SUD,
(Germany) if its Invention is not Industrially Applicable.,
Only because the Patentee's Invention is Commercially Economic and Successful do the respondent have Five Exclusive Showrooms across Chennai,",
Bangalore & Hyderabad. They claim that their Products are available in over 300 Leading Super Markets and Pharmacies throughout Tamil Nadu.,
Their Low Glycemic Sweets for Diabetics are Purchased by All Leading 5 Star Hotels including Le Royal Meridian, GRT Grand, Radisson, Taj",
Coromandel. Our Products are also available in many Leading Hospitals.,
Hence, the respondents would like to conclude their presentation on this issue of Commercial Success and Industrial Applicability by quoting the a",
case law:,
In Howaldt Vs. Condrup [1937] 54 RPC 121 at 132 it was held that, ""the fact that there has been a felt want for some period and the patentee was",
the first person to supply that want, and also as evidenced by the commercial success, are facts which are extremely relevant and sufficient to tip the",
scale in favor of the validity of the patent.,
Lack of any documented evidence by the petitioner,
44. The respondents contended that the petitioner have never produced any documentary proof for substantiating his grounds of revocation, but only",
been repeatedly making bald statements, but failed to produce any convincing evidence or other documentary proofs.",
45. Similarly the petitioner has only relied on the arguments given in the pleadings, taking all the available grounds of revocation, but has not adduced",
any further documents or evidences to substantiate those grounds of revocation.,
46. In this regard, the respondents referred to the following case laws wherein it was shown that neither dumb anticipations nor the non production of",
any convincing evidences will only prove fatal to that party who fail to do so.,
In this respect the reference may kindly made to the judgment of Lord Justice Buckley in Dunlop Holding's Ltd., Appln. [1979] RPC 523 at 542 to",
543, where it was held that, ""failure to produce convincing evidence at any stage at which the evidential burden rests on the party who falls to do so,",
may prove fatal to that party's case. (Case 12),
The respondents further submitted that the petitioners did not file either the pre-grant or the post -grant opposition in respect of this impugned patent.,
Further there is no explanation for the delay of more than 3 years in filing this revocation petition against this impugned patent, when the suit was filed",
by the respondents against the petitioner in June 2006. This itself is makes it abundantly clear that the very basis of this request for revocation is based,
on malicious interest and that the Petitioners are requesting for this revocation only because the Interim Injunction has been given against them by the,
Honourable High Court of Madras.,
In this respect another reference may kindly made to the judgment of Lowndes' patent [1928] 45 RPC 48 at 57, in which JUSTICE Tomlin, observed,",
Where an application is being made for the revocation of a patent which has been granted, there is no doubt that the applicant is under the duty or",
burden of making out his case in the clearest way.,
47. In this case, the petitioner has made no case or has submitted no proof or documented evidence supporting his request for revocation of the",
patents and hence the respondents request the Hon'ble Board to dismiss their request without further entertainment.,
48. Therefore it is very clear that the petitioners having not produced any documents in support of their contentions and arguments would make their,
arguments untenable or as if not argued, like building castles in the air, which is nothing but mere imaginations and perceptions without any clear proof.",
49. Further in the Howaldt Vs. Condrup [1937] 54 RPC 121 at 132 it was held that, ""the fact that there has been a felt want for some period and the",
patentee was the first person to supply that want, and also as evidenced by the commercial success, are facts which are extremely relevant and",
sufficient to tip the scale in favour of the validity of the patent.""",
50. The respondent re-emphasized that the need for Low Glycemic Indian Sweets suitable for Diabetics has been felt for so long and the Patentee,
was the first and only person to supply that want and has also evidenced commercial success.,
51. The patentees have proven that there is 1) Definite inventiveness in the Patents, 2) There is no prior art or common general knowledge available",
regarding the invention that this Patent deals with before the date of the patent, 3) The Invention has not been obvious to anybody skilled in the art",
before the date of the patent, 4). The invention of the patent has been commercially successful and industrially applicable 5) Absence of any",
documented evidence by the Petitioner.,
52. The respondents therefore pleaded for rejecting the revocation application.,
Decision and reasons,
53. On the basis of submissions made by the applicant and the respondent one thing is clear that that the purpose of the invention is to avoid,
caramelisation/Maillard reaction responsible for the so called browning of the sweets. It is uncontested that browning will take place if the sweets are,
heated at a temperature above 110 oC. If we see the patented process for making the low glycemic sweets as disclosed in the specification we find,
that the maximum temperature disclosed in the examples is between 60 to 80oC. This clearly establishes that browning will not occurs in any case at,
this temperature. This is also evident from information given about the caramelisation and maillard reactions in the Encyclopedia for Food and Culture.,
caramelisation and maillard reactions requires temperatures that cannot be reached when water is present (boiling point of waters limits the cooking,
temperature to 212o F),
54. This makes the step of purging with inert gas not essential. Further disclosure of an alternative method and optional purging in Example 1 and 3,
also goes against the contention of the respondents that purging with inert gas is the inventive step in making fructose syrup.,
55. If we examine the differences in the two methods ie. inventive method and traditional method it is only the use of fruit sugar in place of,
conventional cane sugar. This is also admitted by the respondent. Now we shall examine the whether this is merely a selection from obvious,
alternative. This patent relates to low glycemic sweets where fructose/levulose is used as sweetener. The prior art or common knowledge here is use,
of cane sugar. Prior art discloses possibility of solving this problem by using fruit sugar which is known to have low glycemic index among other,
substitutes of sweeteners. The problem here is to find low glycemic sweeteners for using as suitable substitutes to sugar which is high glycemic.,
Selection of sweetener is based on its glycemic index. Available choice is sugar or fruit sugar. The person skilled in the art in this case had to make a,
choice between two well known possibilities. Either of the choice is based on the balancing of the disadvantages specific to the particular choice of,
sugar being selected such as the cost involved and technical adaptation so required. This is obvious in view of the fact that the type of sugar is,
required to chosen from what is well-known. In other words selection is being made from obvious alternatives.,
56. Now let us examine the purpose of the selection so made. Purpose here is to make low glycemic sweets and the basic purpose is sweetening of,
the sweets. And in such case test of inventive step is,
Whether the skilled person could obviously use a material generally available on the market and suitable for the purpose, and was also highly likely to",
use it for reasons irrespective of its characteristics?,
If answer is in affirmative then such use should not be considered as inventive on account of those characteristics alone.,
57. We therefore find it reasonable to accept that if making such selection was itself already obvious for other reasons, the natural choice of the",
particular sweetener available in the market was devoid of mental or practical effort, or of ""purposive selection"", in the absence of anything to the",
contrary.,
58. We can find the answer to this issue by finding whether addressing this kind of problem forms part of the routine work of a person skilled in the,
art. Since answer to this is in affirmative in the present case we find that neither the posing of such a problem nor a solution which merely involves,
routine adaptation or the use of known alternatives goes beyond what may be normally expected from an average person skilled in the art. In the,
context of the normal sweet making activities, motives for finding alternative may include the need for alternative sweetener as such. It may be",
accepted that the skilled person would adopt a conservative attitude when choosing the parameters and composition of a material (in this case,
sweetener) where the effect of any changes is difficult to predict. But, in an attempt to find the most appropriate alternatives in the given",
circumstances, the person skilled in the art must be expected to consider the use of well-known alternative materials which have proven to be suitable",
in a similar use. Fructose uncontested was, at the priority date of the opposed patent, among the most commonly known sweeteners. Hand book of",
Sugar (page1-9) confirms this based on sugar analysis. The choice of a fructose as sweetener in present claim 1 thus formed part of the normal,
activities of a person skilled in the art having to select a suitable one among a limited number of well-known alternative groups of sugar. This choice,
did not go against an established prejudice and could be made with a reasonable expectation of achieving known advantages (eg. low glycemic Index,
and lower costs) in the sweets. Following the conservative attitude mentioned above, the person skilled in the art would start routine trials with",
fructose and other sweeteners. Proceeding in this manner, the person skilled in the art would have arrived using fructose as claimed in claim 1 by",
using, in an obvious manner, a sweetener generally available on the market and suitable for the purpose.",
59. The respondent has cited cases referred above relating to, obviousness, inventive step, commercial success etc which we find are not so relevant",
in this case partly because of the difference in issues involved and partly because of the peculiar facts of this case. In view of above analysis and,
findings, we are inclined to agree that the subject-matter of the invention of the opposed patent does not involve an inventive step. The revocation",
petition therefore succeeds on this ground and hence grant of the patent number 200285 is set aside.,
