J 2011 SCC OnLine IPAB 102 2011 IPAB 93 Prem Nusrlranchiacin 20220904 115425 1 18

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2011 SCC OnLine IPAB 102 : [2011] IPAB 93
Intellectual Property Appellate Board

Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-
600018
BEFORE HON'BLE SMT. JUSTICE PRABHA SRIDEVAN, CHAIRMAN AND HON'BLE SHRI D.P.S.
PARMAR, TECHNICAL MEMBER (PATENTS)
(By Advocate Shri A. Prabakara Reddy)

Mr. Srinivasa Raja, Partner Adyar Ananda Bhavan, Muthulakshmi
Bhavan, 9, MG Road, Shastri Nagar, Adyar, Chennai-600020 …
Applicant;
Versus
Krishnamachari Ramu & Ms. Lavanya R., New No. 10, Old No. 26
C, Melony Road, T. Nagar, Chennai-600017 … Respondents.
(By Advocate - Shri A.A. Mohan)
ORA/3/2010/PT/CH
Decided on Thursday, November 24, 2011
ORDER (No. 206/2011)
HON'BLE SHRI D.P.S. PARMAR, TECHNICAL MEMBER (PATENTS)
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
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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)
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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
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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 212o F or less). Caramelisation stars at around 310o 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 110o 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 o C. In fact,
caramelisation in the fructose forms when fructose is heated at about 110o C 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 100o 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 very vague and not comprehensive
particularly with regard to the methods of heating and obtaining viscosity. The
viscosity is obtained by heating sugar or fructose and the description of the invention
as given in the complete specification lacks inventive step. The description of invention
as made in the complete specification for manufacturing sweets of low Glycemic index
also is not new and is commonly practiced in the industry. The very description given
in the complete specification abundantly makes it very obvious involving no inventive
step. The specifications or the examples appended to the specifications do not disclose
any invention. The examples for preparation of the product for which the patent is
claimed are very well known publicly and being used by everyone in the preparation of
Indian sweets. In fact the patentees obtained product patent for all Indian sweets
without showing any inventive steps in the specifications.
17. The specifications do not disclose any invention. The patentee having admitted
that Indian sweets are made using fructose even prior to the filing of the application
for grant of patent cannot claim any patent for the said alleged invention.
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The manner and the method of preparation the product as given in the
specifications do not teach any new process or product.
The examples for description of the invention are also in the common knowledge
and practice which makes it very clear that the invention lacks any inventive step and
is obvious.
18. The claim as made in claim 1 is very vague, not specific and encompasses
within its fold all the sweets/confectioneries. The claim 1 does not disclose any
invention as even heating under inert gas blanket is given as optional.
The claim as made in claim 2 is very vague and generic and pertains to already
existing product.
The claim as made in claim 3 is very vague as the specifications having not given
any particular process or method of making levulose syrup other than the conventional
method and being very vague is liable to be revoked.
The claim as made in claim 4 also do not involve any inventive step and is in
common knowledge and practice in preparation of Indian sweets. Levulose/fructose is
only a substitute for sugar made of sugarcane and patentee having admitted that
already Indian sweet preparation are being made with the said fructose cannot claim
any patent for preparing Indian sweets with fructose.
The other claims as made in claims 5 to 19 are highly frivolous and are liable to be
revoked.
19. The patentees obtained patent monopoly for Indian sweets made using fructose
by misleading and playing fraud on the Controller of Patents, the patent is liable to be
revoked.
20. In Patent No. 200285, the title of the invention is low glycemic sweets.
Specification discloses
“Hence the other possibilities of using natural sugar substitutes were explored. The
prior art teaches using sorbitol as a cane sugar substitute. In the production of one
of the hardboiled sweets based on freshly prepared cottage cheese (paneer in
India) for example rasgulla, the sorbitol syrup has been used. However, the draw
back with Sorbitol is that the sweetness index of sorbitol is significantly lower than
that of cane sugar and is therefore less satiating than sugar. Moreover sorbitol has
fairly high laxative property and hence is not suitable for general consumption.
Sorbitol is not proposed to be used for the invention.”
However, in the example for all the invention herein is to use levulose optionally
containing other nutritive and or non-nutritive sweeteners without the problem of
browning during or after the processing at elevated temperature. The patent
application No. 126/MAS/2003(Patent No. 193899) is reproduced by way of reference
in this specification. The specification describes the invention in contradictory manner.
“According to the present invention it is to be understood that the principal object
of the disclosed invention relates to the sweets especially Indian sweets having low
glycemic index and suitable for the consumption by one and all especially by the
diabetic patients, or by the people showing the symptoms of the diabetics without
compromising on organoleptic properties and other desirable properties. Therefore
the present disclosure is not any process specific instead it is product specific.
Different Indian sweet varieties have certain similarities and certain dissimilarities
in their process of preparation. There are some other sweets varieties that may
differ entirely in their process of making. Whatever may be the method of
preparation, the basic concept of the invention is manufacture of the sweets that
are suitable for the consumption even by the diabetic patents.”
In Example 1 the method of preparation of rasagulla, steps H, I and J inert gas is
optional.
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Example 9 for preparation of Mysore pak is not possible.

Example 10 Preparation of Halwas, Levulose is added only towards the end of heating
process with optionally inert gas blanket in low flame or after heating process is
completed.
21. In view of this, there is no inventive step involved in the process in as alleged
by the patentee. What is done in this invention is the simple substitution of sugar with
levulose. In this the invention is the simple substitution of sugar with fructose. The
invention is levulose as the caramelisation of levulose will not occur if the temperature
is more then 110o C. This invention is not patentable under Section 2(1)(j) and 2(1)(j)
(a), as inert gas boiling is not an inventive step. Further, process for preparation of
syrup of non browning fructose is not an invention.
22. A comparative method of preparation of sweets with sugar and fructose is given
by the Applicant are given below
METHOD OF PREPARATION
MILK HALWA
SUGAR FRUCTOSE
Take 10 litrs of milk Take 10 ltrs of milk
Add approx. 1 kg of sugar Heat the above milk to boil continuously
Heat the above milk to boil continuously for 30 mts.
for 30 mts. Mix. it well till it comes to 35% of 10 ltrs
Mix it well till it comes to 35% of 10 ltrs now add 850 grams of fructose to the
now add 1 kg of ghee in 3 intervals and above now add 1 kg of ghee in 3 intervals
allow the ghee to get mix ed along with and allow the ghee to get mixed along
the kova for 10 mts by reducing the with the kova for 10 mts by reducing the
flame. flame.
Add approx. 5 grms of elachi powder Add approx. 5 gms of elachi powder Milk
Milk haiwa is ready to serve. halwa made out of fructose is ready to
serve.
KOVA BURPHEE, MILK BURPHEE, MALAI PEDA
Take 10 Itrs of milk Take 10 ltrs of milk
for 45 mts. Mix. it well till it comes to 27% of 10 ltrs
Mix it well till it comes to 27% of 10 ltrs reduce the flame and
Add approx. 5 grms of elachi powder Add approx. 850 grams of fructose, mix it
Now put the above preparation in the well till such time fructose is evenly mixed
S.S. tray allow the preparation to come Add approx. 5 grms of elachi powder
room temperature. Now put the above preparation in the S.S.
Cut it to the required shape and size. tray allow the preparation to come room
Now Kova Burphee is ready to serve. temperature.
Cut it to the required shape and size.
Now Kova Burphee is ready to serve.
CHOKOLATE BURPHEE
Take 10 ltrs of milk Take 10 Itrs of milk
for 45 mts. Mix it well till it comes to 27% of 10 ltrs
Mix it well till it comes to 35% of 10 ltrs now add 60 grams of chocolate powder to
Now add 60 grams of chocolate powder the above reduce the flame and Add
and mix it properly till the consistency approx. 850 grams of fructose is mix it
is 27 of the above well till such time fructose is evenly mixed
Add approx. 5 grms of elachi powder Add approx. 5 grms of elachi powder
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Now put the above preparation in the Now put the above preparation in the S.S.
S.S. tray allow the preparation to come tray allow the preparation to come room
room temperature.
Temperature. Cut it to the required shape and size.
Cut it to the required shape and size. Now Chokolate Burphee is ready to serve
Now Chokolate Burphee is ready to
serve.
KESARIPEDA
Take 10 Itrs of milk Take 10 ltrs of milk
for 45 mts. Mix it well till it comes to 27% of 10 ltrs
Mix it well till it comes to 35% of 10 ltrs now add of to the above reduce the flame
Now add 1/2 gram saffron and mix it and Add approx. 850 grms of fructose,
properly till the consistency is 27% of mix it well till such time fructuose is
the above. evenly mixed
Add approx. 5 grms of elachi powder Add approx 5 grms of elachi powder, allow
allow the preparation to come room the
temperature. preparation to come room temperature.
Now put the above preparation in the Now put the above preparation in the
available die Put it in the die and serve 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 Remove the milk from fire allow it to come
come to 70 degrees to 70 degrees
Add required amount of venigar Add required amount of venigar
(approximately 100 ml) along with plain (approximately 100 ml) along with plain
water water
Mix it well till the chenna separated Mix it well till the chenna separated from
from milk milk
Using white mustin cloth filter swill the Using white mustin cloth filter swill the
entire wafer removed, entire water-removed,
To the above preparation add approx. To the above preparation add approx. 35
35 grams of raw maida grams of raw maida
Kneeding the above preparation till such Kneeding the above preparation till such
time till getting properly mixed time it getting properly mixed
ZEERA 1 FOR COOKING RASAGULLA
Take 5 kgs of sugar add 7 Itrs of water Take 5 kg of fructose add 15 Itrs of water
mix mix it properly till such time fructose is
properly till such time sugar is completely dissolved.
completely dissolved Allow the syrup to boil 100 degrees now
Allow the syrup to boil 105 degrees now make the chenna into smaller bolls
make the chenna into smaller bolls (required shape and size)
(required shape and size) Put these bolls into the boiling zeera syrup
Put these bolls into the boiling zeera and cook for 15 mts.
syrup and cook it for 15 mts. Add 15 grams of maida with whave water
Add little amount of 15 grams of maida and sprinklet while the syrup is boiling
with and rotate the syrup continuously
whave water and sprinklet while the Till such time the chenna is cooked
syrup is SUGAR SYRUP FOR SOKING
boiling and rotate the syrup. Take 7 ½ Itrs of water and boiled it to 100
Till such time the chenna is cooked degrees put the flame off
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SUGAR SYRUP FOR SOKING Now add 4 kgs of fructose in it and mix it
Take 5 kgs of sugar add 7 Itrs of water till such time fructose is completely
mix it dissolved.
properly till such time sugar is Now switch the flame on and keep it in a
completely mild heat (100 degrees) and allow the
dissolved above preparation to boil till the required
Allow the syrup to boil 100 degrees consistency.
Now add 50 ml of raw milk into the Now soak the prepared rasagulla in the
syrup to above prepared zeera
remove the impurities available in the
sugar.
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
prepared zeera.
RASAMALAI
40 Itrs of milk boiled upto 100 degrees, 40 ltrs of milk boiled upto 100 degrees,
Remove the milk from fire allow it to Remove the milk from fire allow it to come
come to 70 degrees to 70 degrees
Add required amount of venigar Add required amount of venigar
(approximately 100 ml) along with plain (approximately 100 ml) along with plain
water water
Mix it well till the chenna separated Mix it well till the chenna separated from
from milk milk
Using white mustin cloth filter swill the Using white mustin cloth filter swill the
entire entire water removed,
water removed, To the above preparation add approx. 35
To the above preparation add approx. grams of raw maida
35 grams of raw maida Kneeding the above preparation till such
Kneeding the above preparation till such time it getting properly mixed
time it getting properly mixed
ZEERA 1 FOR COOKING RASAMALAI
Take 5 kgs of sugar add 7 Itrs of water Take 4 kg of fructose add 12 Itrs of water
mix it mix it properly till such time fructose is
properly till such time sugar is completely dissolved
completely Allow the syrup to boil 100 degrees now
dissolved make the chenna into smaller bolls
Allow the syrup to boil 105 degrees now (required shape and size)
mark Puts these bolls into the boiling zeera
the chenna into smaller bolls (required syrup and cook it for 15 mts.
shape and size) Add 15 grams of maida with whave water
Put these bolls into the boiling zeera and sprinklet while the syrup is boiling
syrup and and rotate the syrup continuously
cook it for 15 mts. Till such time the chenna is cooked
Add little amount of 15 grams of maida SUGAR SYRUP FOR SOKING
with Take 1½ Itrs of water and boiled it to 100
whave water and sprinklet while the degrees put flame of
syrup is Now add 750 grms of fructose in it and
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boiling and rotate the syrup. mix it till such time fructose is completely
Till such time the chenna is cooked dissolved.
SUGAR SYRUP FOR SOKING Now switch the flame on and keep it in a
Take 5 kgs of sugar add 7 Itrs of water mild heat (100 degrees) and allow the
mix it above preparation to boil till the required
properly till such time sugar is consistency.
completely dissolved Now soak the prepared rasamalai in the
Allow the syrup to boil 100 degrees above prepared zeera.
Now add 50 ml of raw milk into the Take 5 ltrs of milk boil it to 70, add 1
syrup to gram of saffron
remove the impurities available in the Cool the above milk to room temperature
sugar. Now remove the rasamalai from zeera
Allow the syrup to boil and remove the squeeze it then soak it in the above
impurities floating. prepared milk.
Repeat the same till such time the
syrup is clear.
To the consistency what you require
Now soak the prepared rasamalai in the
above
prepared zeera
Take 5 Itrs of milk boil it to 70, add 1
gram of
saffron
Cool the above milk to room
temperature
Now remove the rasamalai from zeera
squeeze it then soak it in the above
prepared milk.
Inert Gas Ovens are already available in the market as per citation.
23. The counsel for applicant submitted that, as per the respondents counter
statement the essential feature of the invention are
(i) “Preparation of non-browned levulose syrup by purging of inert gas at about 2.5
kg/sq cm through the levulose powder solution.
(ii) Controlling and monitoring the viscosity of the syrup from about 1.2 cps to upto
1,00,000 cps.
(iii) Heating the solution of levulose under steam pressure ranging from about 2 to
about 10 times the atmospheric pressure.
(iv) Prolonged heating of the levulose solution at low pressure or vacuum at
temperatures at about 60 degree to 80 degree Celsius.
(v) Introducing the sweetmeat into the prepared levulose solution under inert gas
bubbling until the solid mass is well cooked.
And inventive step of the invention lies in (a) Preparation of non-browned levulose
syrup by purging of inert gas at about 2.5 kg/sq cm through the levulose powder
solution.(b) Controlling and monitoring the viscosity of the syrup from about 1.2
cps to upto 1,00,000 cps. and (c) Introducing the sweetmeat into the prepared
levulose solution under inert gas bubbling until the solid mass is well cooked.”
Common general knowledge
24. The counsel for applicant argued that no new knowledge is taught in making
Fructose/levulose syrup without browning and there is no new invention and there is
no disclosure of invention as prevention of browning (caramelisation) by maintaining
low temperature is common general knowledge as seen from citation (A1). The
process of controlled heating of a sweet is already known. Since no elevated
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temperature beyond 60o C to 80o C is disclosed in the specification the browning will
not occur at all. It is further submitted that as given in the citation the browning
occurs only at a temperature between 100o C to 120o C. Therefore, the claimed process
is obvious as preparing levulose based sweets without browning at a temperature
between 60o C to 80o C in the present case as caramelisation and maillard reaction
responsible for browning occurs only if the temperature is between 100o C to 120o C.
According to the patentee use of fructose in place of normal sugar is claimed as
invention.
25. Moreover the so called essential step of purging in the preparation of non-
browned levulose syrup by purging of inert gas at about 2.5 kg/sq cm through the
laevulose powder solution is not essential as seen from description
Example 1
This example illustrates the preparation of Fructose syrup of the required viscosity
without browning 750 gm of Fructose powder in 1000 ml of Water was heated with
and without purging of inert gas. The time ‘0’ was taken from the point of boiling of
the solution. The colour of the solution was measured at 430 nm. As described,
controlled heating of fructose in the presence of inert gas helps in the production of
fructose syrup without change of the initial colour. Table 1 presents representative
data of such an experiment.
Example 2
It is obtained that other sugar alcohols such as sorbitol, lacititol, xyitol, and manitol
has been used and the temperature maintained for making fructose solution is
between 60o C to 70o C.
The applicant further contented that the respondents in their counter statement
stated that
“as stated in the present patent the product that is protected under the Indian
Patents Act, is Indian sweets with Low Glyemic Index wherein the undesired
Maillard reaction and caramellisation are controlled to the desired level and
organoleptic properties are maintained by using a novel and inventive low
glycemic ingredient.” Example 2 is using sorbitol, lactitol, zyitol and manitol
which are not low glycemic sugar as admitted by the applicant.
26. It is submitted that in example 2 no purging with inert gas was done which
proves that the step of purging is a non-essential step. The so called making of non
browning fructose syrup is not inventive as in any case browning will not occur at
lower temperature between 60-80o C and making of sugar syrup in water by boiling is
common knowledge.
The counsel for applicant pleaded for the revocation of this patent. In view of the
above grounds.
Respondent's argument
27. The learned counsel for respondents submitted that the claimed invention is not
product specific by process specific. It is for a novel process of preparing levulose
syrup of variable viscosity and maintaining its consistency without browning at
elevated temperatures and preparing Low Glycemic sweet without getting it browned
when the content is exposed to elevated temperature. Normal Sugar is substituted by
inventive low Glycemic ingredient so that sweets become consumable by diabetic
patients. The inventor herself Ms. R. Lavanya requested permission to explain the
invention. The counsel for applicant had no objection to this. She explained with clarity
the ingredients of the invention and even cited case law's to support the grant of
patent.
Inventive step
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 Halwas.
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 Bishwanath Prasad Radhey Shyam v. 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 v. 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 v. Shiro Kanao of Ibaraki
city ALL INDIA REPORTER, 1983 Delhi 496, - It was held that, “A newand 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 v. Shamaldas Sankalchand ALL
INDIA REPORTER, 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 v. 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 v. 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 sate 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
ECONOMNIC 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 v. 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 v. 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 v. 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 110o C. 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 80o C. 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 (page 1-9)
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 sweetners.
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.
(D.P.S. Parmar)
(Justice Prabha Sridevan)
Technical Member (Patents)
Chairman
———
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Page 1 Sunday, September 04, 2022

2011 SCC OnLine IPAB 102 : [2011] IPAB 93

Intellectual Property Appellate Board

(By Advocate Shri A. Prabakara Reddy)

Example 9 for preparation of Mysore pak is not possible.

of making the adoption.”

The common general knowledge as described by JUSTICE Laddie in Raychem

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