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Know The Real India: The Indian Flag |
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RKD News: R K Dewan & Co. successfully restrains the infringers on behalf of Aztec Secret Health & Beauty Ltd. |
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Celebrations: Dr Mohan Dewan completes 50 Years (1973-2023) of Advocacy R K Dewan & Co. at Restart Solar Energy India Conference 2023 |
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DIIPR News |
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Spotlight- Naming Blunders |
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Analysis-Demystification of a
‘product-by-process’ claim |
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Thread Bare - Parle Products Pvt. Ltd. successfully prevents its trademark “GLUCO” from infringement |
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Snips and Specs |
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| Know The Real India: The Indian National Flag |
| Bharatvarsha has always been connected with flags. Since ancient times, Flags have continued to serve as symbols of honour, valour, sacrifice and Dharma. In the recent times, flags have also denoted regions and patriotism. |
| The national flag of Bharat, in pursuance of the same has been used to denote various versions of our Country’s struggle for independence. The journey of the National Flag of Bharat is deeply intertwined with the Indian Independence movement and the relentless efforts of the visionary leaders who fought for its independence. |
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RKDecodes- Decoding Delicious 10 Delicacies - Bisi Bele Hulliyanna |
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Let us delve into the origins of our National Flag, and explore its evolution as well the thoughts behind its design.
THE FIRST FLAG
During the initial stages of the freedom struggle, the need for a unifying symbol became evident. In 1904, the first idea of having a National Flag was put forward by Sister Nivedita, who was a disciple of Swami Vivekananda. She chose red and yellow colours, to represent victory and strength for the design of the flag. It had the phrase 'Vande Mataram' written on it in Bengali along with an emblem of Vajra, which is the weapon of Lord Indra to denote power. |
THE FIRST TRICOLOUR
In 1906, Kolkata witnessed another variant of our National flag. This variant was the first to introduce the idea of a tricolour. The flag had three horizontal stripes in the colours namely; blue, yellow and red. On the top, there were 8 stars of different forms aligned in a straight line which were symbolic of the 8 provinces of Bharat under the British Rule. The words ‘Vande Mataram’ was printed on the yellow section, and a sun, crescent moon with a star were inscribed on the red stripe at the bottom.
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THE CALCUTTA FLAG
In the same year, another flag was unfurled, with horizontal stripes of orange, yellow, and green. This came to be known as the 'Calcutta flag' or the 'Lotus flag,' because it included eight lotuses on the orange strip. This Flag is believed to be created by Sachindra Prasad Bose and Sukumar Mitra. It was unfurled on August 7, 1906, at Parsee Bagan in the erstwhile Calcutta (Kolkata).
THE BERLIN FLAG
A year later, Madam Bhikaji Cama, Vinayak Damodar Savarkar (Veer Savarkar), and Shyamji Krishna Varma were instrumental in the creation of another variant of |
the tricoloured flag. This flag was hoisted on August 22, 1907, at Stuttgart, Germany. The flag had three coloured stripes: saffron at the top, yellow in the centre, and green at the bottom. This was the first flag to feature the Saffron colour.
THE HOME RULE FLAG
A decade after, Hem Chandra Das created a new flag for Bharat, which was designed and hoisted by two of our most revered leaders of those times, Bal Gangadhar Tilak and and Mrs. Anne Besant in the year 1917. This flag featured seven stars of the Saptarishi constellation pattern on alternate green and red stripes and had the Union jack at its top left, a crescent moon, and a star. |
THE FIRST FLAG WITH CHARKHA / PINGALI VENKAYYA FLAG
In 1916, Pingali Venkayya, a writer and geophysicist, developed a flag to unite the nation. When he approached Mahatma Gandhi for his approval, he was advised to include a 'charkha' in the flag to represent the economic revival of Bharat. Mahatma Gandhi unfurled this flag in 1921 which was white at the top, green at the middle, and red at the bottom. An image of the 'charkha' was painted over the three stripes to represent the unity of all communities.
However, this flag drew criticism, as a majority of people expressed a discontent with regards to the design of the National Flag. Consequently, the original |
placement of the colours of this flag were changed to saffron being at the top, white in the middle, and green at the bottom, with a white stripe with a charkha image in the centre. It was authorised in the year 1931.
AZAD HIND FLAG
This Flag was hoisted by Netaji Subhash Chandra Bose in the year 1943. It was hoisted as the National Flag of Bharat/Hindostan for the first time at the Gymkhana Ground (now Netaji Stadium) in Port Blair, Andaman Island. He being the first Bharatiya/Hindostani to reclaim a territory under British rule in Bharat, proclaimed Andaman and Nicobar Islands, as the first area of Bharat to be independent from colonial rule. This was an important event as the Andaman and Nicobar Islands housed a jail where patriots were exiled as punishment for voicing against the British raj. |
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1947 FLAG OF INDIA
In 1947, when Lord Mountbatten announced India to be an Independent Nation; an ad-hoc flag committee led by Dr. Rajendra Prasad was formed to create a flag for a free India which was resonant of all the communities. With the approval from Mahatma Gandhi, it was decided that an altered Pingley Venkayya's flag should be adopted. The charkha was replaced by the Ashok Chakra (Ashoka's Sarnath Pillar Wheel) as the National Emblem and the tricolor flag, was officially adopted as the National Flag of India on July 22, 1947. It is important for us to understand that each colour in the Indian National Flag holds a deep symbolism and reflects the values and aspirations of the nation as provided below:
- Saffron: The topmost band of saffron signifies courage, sacrifice, and the spirit of renunciation. It represents the valour and sacrifice of the country's freedom fighters who selflessly fought for independence.
- White: The middle white band represents purity, truth, and peace.
- Green: The lowermost green band signifies fertility, growth, and auspiciousness. It represents India's agricultural heritage, as well as its commitment to environmental harmony and sustainable development.
- Chakra: The Chakra represents constant movement and progress.
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How to display the National Flag and How Not to
The display of the National Flag is governed by the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and Prevention of Insults to National Honour Act, 1971 (No. 69 of 1971). A special Flag Code of India, 2002 was formulated to bring together all such laws, conventions, practices and instructions for the guidance and benefit of all concerned.
Recently, the Government of India launched the ‘Har Ghar Tiranga’ campaign, encouraging all the citizens to hoist the Indian National Flag in every home. Hence the Ministry of Home Affairs amended the Flag Code of India 2002 allowing an unrestricted display of the Tricolour as long as the honour and dignity of the flag were being respected. The Flag code of India enumerates all do’s and don’ts in respect of display of National flag and those conditions must be adhered to.
The National Flag cannot be used for any commercial |
The National Flag cannot be used for any commercial purposes such as a Trademark/brand name in violation of the Emblem and Names (Prevention of Improper Use) Act, 1950.
The Indian National Flag, as it stands today with its vibrant tricolour, is a powerful emblem of India's hard-fought independence and its unity amidst diversity and national identity. With every wave, it serves as a powerful reminder of the country's struggle for freedom and its unity in diversity. It is a manifestation of the courage, sacrifice, and aspirations of countless individuals who contributed to the nation's freedom struggle. Through its iconic tricolor and symbolic elements, the flag continues to inspire and instil a sense of pride in every Indian. It serves as a constant reminder of the values that India upholds—courage, truth, peace, and progress. As the flag soars high, it represents the collective dreams and aspirations of a nation that strives for a brighter future while honouring its rich history and cultural heritage. |
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R K Dewan & Co. successfully restrains the infringers on behalf of Aztec Secret Health & Beauty Ltd.
Recently, Aztec Secret Health & Beauty Ltd. (Aztec Secret) represented by R K Dewan & Co., was successful in obtaining an ex parte ad interim injunction in a suit filed before Delhi High Court, against the infringers namely, Mohammad Akbar U Maniyar & others (Defendants) for infringing its copyright in original artistic work and passing-off of its trademarks.
Aztec Secret is a company incorporated under the laws of United States of America and is engaged in the business of manufacturing and selling of healing clay, facial cleansers, facial beauty masks, essential oils, apple cider vinegar, etc. particularly used for skin |
care and rejuvenation under its trademarks AZTEC SECRET since 1986.
Aztec Secret has been actively using its trademarks / trade dress/ trade name/ artistic work "AZTEC SECRET / ” for its products since the year 2013 in India. Aztec Secret has also been selling, advertising its products through its own website i.e., www.aztecsecret.com and through various e-commerce websites such as Amazon, Go India Organics, Tata 1mg etc. The goodwill and reputation of its products is acknowledged by several popular magazines including Vogue, Business Insider, Valley, Allure, New York Post, Cosmopolitan, etc. |
Aztec Secret came to know that, the Defendants were violating their statutory and common law rights by infringing their original artistic work and were also passing-off their goods by adopting identical trademarks/ trade dress “AZTEC SECRET” & domain name www.aztecsecret.in.
R K Dewan & Co. on behalf of Aztec Secret approached the Delhi High Court, restraining the Copyright and Trademark Infringement as well as Passing off. The Hon’ble Court vide its Order granted an ex parte ad interim injunction, restraining the Defendants and held that the marks “AZTEC SECRET” were identical to the Aztec Secret’s registered copyright in original artistic work and its registered trademarks “AZTEC SECRET". |
The Court was pleased to appoint a two Local Commissioners to inspect, sign and take charge of the account ledgers / cash books / accounts books, manufacture and / or import records pertaining to the sale etc. of the products bearing the infringing marks.
Thereafter, the R K Dewan & Co. team assisted the Local Commissioner to investigate and conduct a smooth and successful raid at the premises of the Defendants in Karnataka & Delhi. The Defendants also undertook to provide the Statement of Accounts, books of accounts, invoices of the infringing trademark “Aztec Secret” along with the sample of label bearing the infringing marks.
This case reflects R K Dewan’s expertise in taking swift and well-strategized actions which lead to timely and effective results. |
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Dr Mohan Dewan completes 50 Years (1973-2023) of Advocacy
R K Dewan & Co. proudly shares that on this 3rd August, 2023, Dr Mohan Dewan has achieved the milestone of completing 50 Years (1973-2023) of Advocacy!
A stalwart of the Indian IP arena with over 50 years of experience in intellectual property practice, both prosecution and litigation, Dr. Dewan serves over 6000 clients in India & internationally. An acknowledged expert in patent practice, he has drafted over 8000 patent specifications in all technology areas, a majority of which have been granted. Dr. Dewan also has litigation practice in all levels of courts in India, both civil and criminal. An INTA volunteer for more than 15 years, Dr. Dewan has been a top contributor; |
authoring a remarkable number of Law & Practice updates covering Indian case laws, for the INTA Bulletin. He is frequently invited to conduct seminars, workshops, and training programs for students, executives, IP professionals and IP Office examiners etc.
We at R K Dewan & Co. honour your remarkable success and dedication and are blessed have you as our guiding force. |
R K Dewan & Co. at Restart Solar Energy India Conference 2023
R K Dewan & Co. is delighted to share that our firm was invited to speak at the prestigious Renewable Energy Conference organized by Restart Solar India, held at CIDCO Exhibition & Convention Centre, Navi Mumbai. The conference was held on 4th August, 2023 and was attended by a number of companies associated with the business of renewable energy in India.
Dr. R. K. Sapru (Senior Patent Consultant), on behalf of our firm, spoke on Intellectual property and renewable energy. At the outset, the Dr. Sapru spoke about intellectual property, its types and the importance of registering intellectual property. It was brought out that the world, including India, is moving away from research and development in fossil fuels and is increasingly innovating in there newable energy. Greater focus on renewable energy was substantiated with statistics drawing a comparison of the number of patent applications filed for the fossil fuels and for the renewable energy in the last 5 years. He further elucidated on the number of patent applications filed for renewable energy far outweighed the number of patent applications filed for the fossil fuels in India by conducting statistical exercise giving a break-up of the %age of patent applications filed in the solar, wind, geothermal, tidal and hydroelectric energy and the applications filed in the conventional energy. |
The audience was also apprised that lenders are more inclined to lend for green energy than lending for fossil fuel energy production. It was shared that the Govt. of India has made commitment to generate 50 GW of renewable energy each year for the next 5 years and that there is a huge opportunity for innovation in the renewable energy in India considering limited resources of fossil fuels, commitment for meeting net-zerotarget, climate change and the necessity of reduction of import of the fossil fuels.
R K Dewan & Co. is thankful to Restart Solar for inviting R K Dewan and Company to speak at the Renewable Energy Conference and looks forward to many more such events in the future for a better IPR Aware world and society. |
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| Greetings to our IP family! |
| We Dewan Institute of Intellectual Property Rights (DIIPR), offer specialized courses which are flexible, modular and frequently updated to provide comprehensive training and deliver practical knowledge, which can be immediately applied by the aspirants in the field of Intellectual Property Rights. |
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Good news! As part of our ongoing efforts to enhance communication and engagement, we are pleased to expand our digital footprint and announce the official launch of our brand-new Facebook and Instagram pages!
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Thank you for being an integralpart of our journey. We lookforward to engaging with you onour new social media platforms! |
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Naming Blunders
A Misnomer refers to an inappropriate designation for a person, place or an object. It arises primarily due to two reasons, either due to the fact that a particular thing was named before its true nature was known or an earlier form of a certain something has been changed and its name is unsuitable to that. However, a misnomer cannot be mistaken for a popular misconception but it could definitely be described as aword that someone uses misleadingly.
Food misnomers are a common phenomenon involving food facts, food assumptions, and food myths. This article briefly discusses some general misnomers that are well known.
White Chocolate
There is no denying the fact that white chocolate is popular and liked as well as relished universally. The core constituents of white chocolate include sugar, cocoa butter, milk products, vanilla, and lecithin. |
Chocolate liquor, the main element that is used in chocolates, is derived from the nibs inside cocoa beans that have been ground, dried or roasted. This element is missing in white chocolate and is replaced by milk solids. During the process of manufacturing of chocolate, the cocoa beans are separated from the fatty content - that is, into white and dark chocolate. However, while making white chocolate, no cocoa mass is added back and cocoa butter is the only ingredient used alongwith vanilla flavoring. Therefore white chocolate cannot be called ‘Chocolate’. |
Indian ink
Indian ink is an essential medium that’s been used by artists since ancient times. Its composition includes carbon black (traditionally soot and ash from all sorts of burnt things like bones and tar), mixed with a binder which is usually made up of water or a gum or resin-based solution. The reason as to why this is a misnomer is because this ink originated in China but when it was imported to Europe via India it was termed as “Indian ink”. It is mainly used in sketch books, mixed media work or for painting. This ink can be applied via pens and brushes but necessary precaution has to be taken by the user as once it has dried up, it is impermeable.
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German chocolate cake
Without a doubt, cakes are a must inevery occasion - be it birthday parties or wedding anniversaries. This delicacy comprises several chocolate layers which are coated with coconut and pecans. Having originated in the United States back in the 19th century, its name is a misnomer due to a mere punctuation error.
Sam German invented the concept of a chocolate bar to be used for baking. In his honour, this product was named as Baker’s German Sweet Chocolate. However, the double possessives are tough to pronounce due to which most publishers didn’t include the “s” when they wrote about it. This is how the name came into beingand eventually became a classic American dessert. |
French Fries
An ideal blend of salt and crisp, French fries are well liked by people all over the world. Their affordability due to the cheap and easy to grow ingredient i.e., the potato adds to its popularity. This famous snack has roots in Belgium, a fact which many are unaware of. This misnomer stems from a geographical error that took place during World War I. In actuality the American soldiers who were situated in Belgium accidentally believed that they were in France, the reason being that French is spoken in certain parts of Belgium, where they were stationed. These soldiers christened the potato fries as “French Fries”.
The Bombay Duck
Bombay duck which is also famously called as bombil, bummalo, boomla is actually a fish. According to the BBC, there are a few theories as to how the fish got its moniker, the most popular of which is that the name came from the British mail trains that huffed |
odoriferous orders of dried fish from the city to the interiors of India. These wagonloads became known as ‘Bombay Dak.’ (The worddak means ‘mail.’).
Bombay duck is preferred to be eaten either fresh or traditionally dried in the sun in order to prevent its soft flesh from spoiling. However, in India a common practice is drying the Bombay duck in the sun instead of freezing and canning. This led the European Commission to ban the import of Bombay duck from India in 1977 fearing bacterial contamination.
While the Indian High Commission launched a “Save Bombay Duck”campaign and urged the European Commission to adjust the regulations for dried bombil, David Delaney, a British businessman and a lover of Bombay duck, studied the packaging in Mumbai and fought against the lack of “sanitary evidence” there by having the ban overturned. Hence Bombay duck is sun dried in India. |
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Demystification
of a 'product- by-process' claim
Vifor International Ltd (hereinafter referred to as Vifor) is a pharmaceutical company of Switzerland, incorporated in 1991. The company was granted a patent in India, patent no. IN 221536 titled ‘Water Soluble Iron Carbohydrate Complex and a process for producing Water Soluble Iron Carbohydrate Complex’, (hereinafter referred to as “IN’536”).
The granted patent related to Ferric Carboxymaltose (hereinafter referred to as “FCM”) which is a water soluble iron carbohydrate of complex of iron and oxidation product of one or more maltodextrins. Application for the grant of a patent was filed in India on 25th May 2005 which was granted on 25th June 2008. Emcure Pharmaceuticals Ltd. of Pune, Maharashtra, India, entered into a non-exclusive Licence Agreement dated 25.01.2012 for commercialisation of FCM in India.
FCM treats iron deficiency and is administered intravenously and thus is a very useful replacement when other treatments are ineffective. The prior art iron preparations were based on sucrose and dextran, stable up to 100ºC only, rendering their sterilisation difficult. Further, dextran based complexes could introduce anaphylactic shock. |
Thus, a need existed for an iron preparation which was free from the adversities of the prior art and FCM fulfilled that need.
In December 2020, Vifor came to know that MSN Laboratories Private Limited and (ii) MSN Life Sciences Pvt. Ltd. (hereinafter collectively referred to as“MSN”) were intending to launch ageneric, infringing FCM. Vifor was also informed that MSN was manufacturing FCM, claiming their process to be novel and inventive and not infringing IN’536. It may also be stated that a patent application was also filed by Virchow Biotech Pvt Ltd (hereinafter VBPL) claiming a process for the preparation of FCM. Other companies like Dr. Reddy’s Laboratories Limited (hereinafter referred to as “DRL”) and Corona Remedies Private Limited were also allegedly infringing IN’536. It may also be stated that a patent application was also filed by Virchow Biotech Pvt Ltd (hereinafter VBPL) claiming a process for the preparation of FCM. Other companies like Dr. Reddy’s Laboratories Limited (hereinafter referred to as “DRL”) and Corona Remedies Private Limited were also allegedly infringing IN’536. Vifor filed suits before the High Court of Delhi at New Delhi, demanding interim injunction against all the companies alleging infringement of IN’536. The issues were decided by a common judgement delivered by the High Court of Delhi on 24th July 2023 (CS (COMM) 261/2021 and connected matters). |
Contention of the Plaintiff
Vifor claimed that Claim 1 of IN’536 is a product claim for FCM and could also be described as a ‘product-by-process’ claim, which was a common practice while drafting claims. The process elements are used to describe the end product which forms the subject matter of the claim and the process elements were not limiting. It averred that Claim 1 was a product per se claim and even if the product claimed is prepared using an alternative process; it would still amount to infringement as the process elements were claimed only for illustrative purpose. It tried to substantiate its stand that on the date of filing of the priority application in 2003, the product could not be structurally defined completely and therefore, the language of product-by-process claim was adopted.
Claim 1 IN’536 reads as follows “Water soluble iron carbohydrate complexes obtainable from an aqueous solution of iron (III) salt and an aqueous solution of the oxidation product of one or more maltrodextrins using an aqueous hypochlorite solution at a pH-value within the alkaline range, where, when one maltodextrin is applied, its dextrose equivalent lies between 5 and 20, and when a mixture of several maltodextrins is applied, the dextrose equivalent of the mixture lies between 5 and 20 and the dextrose equivalent of each individual maltodextrin contained in the mixture lies between 2 and 40, wherein the obtained iron complexes have an average molecular weight of 80 kDa to 400 kDa. |
Vifor averred that FCM is a product covered directly under IN’536 and has definite and unique characteristic features, such as average molecular weight between 80 kDa and 400 kDa and manufacture by any unauthorised entity of a product which exhibits the same characteristics, would amount to infringement of IN’536, by virtue of Section 48 of the Indian Patents Act 1970. The products of the defendants fell within the claimed molecular weight range.
Contention of the Defendant
The defendants contended that the three prior art complexes identified in the suit patent are iron carbohydrate, iron-dextran, iron-pullulans or water soluble iron (III) hydroxide sucrose complex. Problems of the prior art identified in IN’536 are all process related, i.e., such prior art complexes are difficult to obtain and require production under pressure and high temperature and involve a hydrogenation step.
The defendants further averred that description is silent on head-to-head comparison between iron-dextran and FCM and there is no disclosure whatsoever as to the nature and character of the prior art iron-carbohydrate complexes and the problems which are overcome by FCM. The first paragraph on page 2 of IN’536 reflects that the problem(s) identified in the prior art is solved only by an iron (III) carbohydrate complex, which is obtainable using the oxidation products of maltodextrin and the only oxidation route identified is using aqueous hypochlorite. |
Oxidation of maltodextrins yielding products in a molecular weight range of 80kDa to 400 kDa, was known in the prior art and the only novel and inventive step lies in the oxidation of maltodextrins using aqueous hypochlorite in the alkaline pH range. The contention of the plaintiff that irrespective of the process adopted, obtaining FCM through any other process would infringe IN’536, does not stand up to scrutiny. Further, opposition filed by the plaintiff in February, 2020 to the application no IN 3474/CHE/2013 admits in many places that claim 1 of IN’536 is a process claim.
Discussion and analysis
Though Indian Patents Act 1970 does not refer to the expression “product-by-process” but it finds mention in the Guidelines for examination of patent applications in the field of pharmaceuticals issued by the Indian patent office, with illustrative examples for determination of novelty for product-by-process claims. It lays down that a product-by-process claim must also define a novel and unobvious product and that its novelty cannot rest on the novelty and non-obviousness of the process alone. In other words, a product-by-process claim is to be tested on the anvil of novelty and inventiveness for the product and the novelty and inventiveness of the process.
The High Court of Delhi averred that the preamble of Claim 1 of IN’536 recites ‘water-soluble iron carbohydrate complexes’ and ‘obtainable from’ is the transition phrase. The process steps claimed results in iron carbohydrate complexes with a defined average molecular weight between 80 kDa to 400 kDa. In case a product is claimed, it must be described by its composition and structure, both physical and chemical and should not be limited by a process. |
Vifor claims that claim 1 is a product claim without describing the product.
There is an admission by Vifor that use of iron carbohydrate complexes is known and a water-soluble iron (III) hydroxide sucrose complex is a frequently and successfully used preparation. During prosecution in India, Vifor stated that the essence of invention resided in appropriately selecting suitable maltodextrins, having specific Dextrose Equivalent as defined in the claims and oxidizing them stereoselectively and regioselectively at the terminal aldehyde group and then by reacting them with iron (III) salts, as a result of which iron (III)-oxidized maltodextrin complexes are obtained, which are polynuclear complexes, having a specific high average molecular weight. The maltodextrins and the oxidation process are known, but the new feature of the present invention is that the obtained iron complexes are very stable to heat, have a very low toxicity, a low risk of anaphylactic shock, sterilized by heating and can be given intravenously. The process disclosed by the defendants included starch hydrolysate with dextan equivalent > 25 and therefore, the starting material itself was different from that used by the plaintiff. In another variation, oxidizing agent was oxone which was different from that used by the plaintiff. Iron carbohydrate complexes with a molecular weight ranging from 80 kDa to 400 kDa were known in the prior art. The process disclosed by the defendants appeared to be different from the process claimed by the plaintiff and also it appeared that the product claimed was known in the prior art. Therefore, the interim injunction against defendants was not granted. However, the defendants were directed to maintain the account books till the final adjudication.
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It is felt that the battle for interim injunction was lost because of inadequate effort by the plaintiff for characterising the product and bringing out its novelty. As disclosed hereinabove, the product had a number of advantages over the prior art products and it would have been worth while to dwell on the product characterisation as well. It appears that Vifor failed to capitalize on this aspect.
In a concluding para of the judgment, the High Court of Delhi averred that in order to succeed in establishing its claim for infringement even at the prima facie stage, Vifor is required to show that the rival processes to manufacture FCM are identical, which burden Vifor has failed to discharge. The conclusion is at complete variance with the section 104A (1) of the Indian Patents Act 1970 which states that in case of suits concerning infringement of a patent, where the subject matter is a process for obtaining a product, the court may direct the defendant to prove that the process used by him is different from the patented product. Thus, it was the defendant who was to prove that alleged infringing process was different from that of the patented process. The burden of proof regarding a process related infringement lies with the defendant and not with the plaintiff.
It is re-iterated that there is no statute in the Indian Patents Act 1970 regarding product-by-process claims. Reference to the Guidelines for examination of patent applications in the field of pharmaceuticals, issued by the Indian Patents Office, can at best be considered persuasive. Nevertheless, it is perhaps for the first time that a judgement has dealt extensively on the subject matter of product-by-process claims.
Global perspective on product-by-process patent claims
EPO accepts product-by-process claims only if the product is different form an existing product and the difference may not be describable in chemical and physical terms (Flavors & Fragrances Inc [1984] OJ EPO 309). The EPO's approach to such claims is settled today and is permitted only if there is no other way available to the inventor for defining the product. |
Donald Chisum in his ‘Chisum on Patents: A Treatise on the Law of Patentability, Validity and Infringement’ defines a product-by-process claim as one in which the product is defined at least in part in terms of the method or process by which it is made. This definition has been referred to by the Court of Appeals for the Federal Circuit of the United States in Atlantic Thermoplastics Co., Inc. v. Faytex Corporation, 970 F.2d 834. Thus, the process claims and product characteristics are integrated and are incomplete without each other.
The courts have also considered the thin line between: a) product ‘obtained by’ a process; and (b) a product ‘obtainable by’ a process (Hospira UL Limited v. Genentech Inc., [2014] EWHC 3857 (Pat). These two at-least prima-facie appear to be different. A product “obtained by” a process would be infringed only if a product was made that way in which it is claimed in the claim. If the product was made in any other way in the prior art, it would have no bearing on the process claimed. This was the view taken of product by process claims in the Court of Appeal in Kirin Amgen ([2002] EWCA Civ 1096, [2003] RPC 3). The word "obtainable by" was intended to claim a product irrespective of how it was made but with a particular product characteristic which is the same characteristic which results from using a given process (Johnson Matthey case cited in argument (T956/04). For example, if the distribution of catalyst particle size produced by a process, resulted in a beneficial catalytic property, it may not matter how the specific particle size was produced. In such a case, the particle size distribution process may have been claimed only for illustrative purpose and therefore ‘obtainable by’ word used. The view taken by the EPO in the 1980s (IFF / Claim Categories T150/82 and later cases T248/85 and T219/83) was firmly against that an old thing could be patented using a product by process language. If a product was known in the prior art, product-by-process language in the claims could confer novelty on the prior art product. The words “obtained by” and “obtainable by” were to be treated at par. If the process introduced specific characteristics in the product, then only it could be considered different from that in the prior art product. |
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Parle Products Pvt. Ltd. successfully prevents its trademark "GLUCO" from infringement
Recently, Parle Products Pvt. Ltd. (Parle) represented by R K Dewan & Co., successfully restrained the infringers for infringing its trademark “GLUCO” which is one of the most popular and reputed brand in India and has been openly, continuously, and extensively used by Parle for over 80 years, in a suit filed before Hon’ble Bombay High Court.
Parle has been India's largest manufacturer of biscuits and confectionery, for almost 90 years. Makers of the world's largest selling biscuit, Parle-G, and a host of other very popular brands, Parle has a 43% share of the total biscuit market and a 15% share of the total confectionary market in India. In 1940, Parle adopted the mark “GLUCO” in respect of biscuits. On 7th December, 1942, Parle applied for and obtained registration of its device mark bearing the trademark “GLUCO” as one of its prominent features in class 30.
In January 2023, Parle came to know that, Taaj Food & Beverages and Charchika Traders were offering for sale/selling beverages under an infringing trademark “GLUCO FILL” on the website www.indiamart.com. |
Upon further investigation, Parle also came across an application filed by Utkal Kumar Behera to have the infringing mark registered.
R K Dewan & Co. on behalf of Parle approached the Bombay High Court, and filed a suit for trademark infringement. The Hon’ble Court granted an ex parte injunction, restraining the Defendants and held that the mark “GLUCO FILL” was nearly-identical and deceptively similar to Parle’s registered mark “GLUCO”.
The Court was pleased to appoint a Court receiver to search all premises of the Defendants and seize and seal all the infringing material including cartons, dyes, moulds, printing equipment and material and any other material bearing the impugned mark. The Hon’ble Court also approved the appointment of Additional Special Receivers (ASR) to inspect, sign and make copies of account ledgers/cash books/accounts books, manufacture and/or import records pertaining to sales etc. of the infringing products, as discovered from the premises of the Defendants.
Shortly thereafter, in July 2023, the R K Dewan & Co. team assisted the ASR(s) and the Local Police to investigate and conduct smooth and successful raids at all the three premises of the Defendants wherein packets/pouches bearing the infringing mark were discovered. |
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Quiz Corner
1. A registered trademark cannot be renewed in the following countries without declaration of use:
a. Japan, USA, Brazil, Canada
b. USA, Philippines, Singapore, Argentina
c. USA, UK, EU, China
d. USA, Brazil, Argentina, Guatemala
2.
A European Patent can be validated in the following countries:
a. Switzerland, UK, Monaco, Luxemburg
b. UK, Moldova, Scotland, Finland
c. Vatican City, Ireland, UK, Sweden
d. Greenland, Iceland, Finland, Ireland
3. In the following countries a single design application with multiple embodiments can be filed for registration
a. India, Canada, UK, China
b. UK, China, UAE, India
c. US, UK, Malaysia, Canada
d. UK, UAE, China, India
4.
The following countries are signatories to PCT & Paris Convention:
a. Brazil, Argentina, Taiwan, Russia
b. India, Tajikistan, Chad, San Marino
c. India, Chile, Bolivia, Uruguay
d. US, India, Paraguay, Argentina
5.
How many Trademark Classes are available for registration of Goods:
a. 44
b. 34
c. 45
d. 46 | Hidden Gems
of India - The Holy City of Ujjain
The Holy City of Ujjain which is generally referred to as the ‘city of temples’ is one of the ancient and continuously in habited city in the world. Apart from being the home to several shrines of spiritual importance, Ujjain is special for one more reason.
In ancient times, keeping a track of time was essential in order to gain knowledge of planetary positions and forecasting auspicious days, which was important for Vedic rituals. According to ‘Surya Siddhanta’, a 4th century astrological treatise; the city of Ujjain, earlier known as ‘Avantika’ was considered as the nabhi or the navel of the Earth as it is situated at the junction where the ancient Zero degree meridian longitude and the Tropic of Cancer converged. Hence, Ujjain helped in determining the time as well as aiding the geographical calculations.
Consequently, Indian astrologers and mathematicians like Varahamihira, Brahmagupta, and Bhaskaracharya made Ujjain as their home. Additionally, in around 58-56 BC, King Vikramaditya introduced the hindu calendar “Vikram Samvat” through Ujjain.
In the 17th century, Maharaja Sawai Jai Singh one of the great astronomer, constructed Jantar Mantar Mahal or (Vedh Shala) and installed 4 different instruments to calculate time through the study of Sun and shadows in order to educate the people about the subject of horology. Even today “panchang” or a horoscope as per the Hindu almanac is according to Ujjain’s time which is somewhere around 29 minutes behind Indian Standard time. |
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| However in 1884, London’s Greenwich became the Zero degree longitude and the implementation of Greenwich Mean Time (GMT) was used to determine time zone of the World as we know today. |
Interestingly, Ujjain is also the home tothe Mahakaleshwar Jyotirlinga Temple which is one of the main twelve Jyotirling as in India. The term “Mahakal” means “beyond time”. The Shrine of Mahakaleshar stands as the testimony to this fact that the “Lord of Time” stands still in Ujjain making it a ‘Greenwich of India’. |
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Decoding Delicious Delicacies - Bisi Bele Hulliyanna
When it comes to food, the name of a dish holds meaning beyond just identification. The name of a dish can give an insight into the history behind it, the ingredients used, or even the cultural significance it holds. In this series of blogs, we will explore the history behind names of famous Indian dishes.
Bisi Bele Huliyanna or Bisi Bele Bath is a traditional South Indian rice dish that originated in the state of Karnataka. It is a flavorful, spicy, and aromatic dish that is made with rice, lentils, vegetables, and a special spice blend called the "Bisi Bele Huliyanna powder". The dish is typically served hot and is a popular comfort food in Karnataka.
The name "Bisi Bele Huliyanna" literally translates to "hot lentil sour rice". The dish gets its name from the unique blend of spices used in the preparation, which gives it its distinctive flavor. |
The spice blend typically includes cinnamon, cloves, cardamom, cumin, coriander, mustard seeds, fenugreek seeds, and a variety of dried red chilies.
The preparation of Bisi Bele Huliyanna involves several steps. First, the rice and lentils are cooked separately. Then, the vegetables are sautéed with the spice blend and added to the cooked rice and lentils. Tamarind pulp is added to give the dish a tangy flavor, and it is finished with a tempering of mustard seeds, curry leaves, and cashew nuts.
Bisi Bele Huliyanna has a long history and is said to have originated in the Mysore region of Karnataka. According to legend, the dish was created by a royal cook of Mysore Palace who was trying to create a nutritious and filling dish for the king's army. The cook combined rice, lentils, and vegetables with a special spice blend and served it hot to the soldiers. The dish was an instant hit and became a staple in the royal army's diet. As per the legend, it took 100 years for the dish to come out from the place and just 200 more years for it to spread throughout India. Over time, Bisi Bele Huliyanna became a popular dish among the people of Karnataka and spread to other parts of South India. Today, it is a staple in many households and is also a popular dish served in restaurants and at festivals. |
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- As I've grown older, I've learned that pleasing everyone is impossible, but pissing everyone off is a piece of cake!
- I'm responsible for what I say, not for what you understand.
- Common sense is like deodorant. The people who need it the most never use it.
- My tolerance for idiots is extremely low these days. I used to have some immunity built up, but obviously, there's a new strain out there.
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- It's not my age that bothers me - it's the side effects.
- I'm not saying I'm old and worn out, but I make sure I'm no where near the curb on trash day.
- As I watch this generation try and rewrite our history, I'm sure of one thing: it will be misspelled and have no punctuation.
- As I've gotten older, people think I've become lazy. The truth is I'm just being more energy-efficient.
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| We do not claim any copyright in the above image. The same has been reproduced for academic and representational purposes only |
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AUGUST 2023 |
| NewsNet is a monthly compilation of articles and updates by R K Dewan & Co. This publication is intended to be circulated for informational purposes only. The publication
in no way constitutes legal advice/opinion being provided by R K Dewan & Co. to its
readers or the public at large. R K Dewan & Co. encourages readers to seek professional
legal advice before acting upon the contents provided herein. The firm shall not be
responsible for any liability or loss that may be attributed to the contents of this
publication. This publication is the property of R K Dewan & Co., and the same may not
be circulated, distributed, reproduced, or otherwise used by anyone without the prior
express permission of its creators. |
| Quiz Answers- 1) d. USA, Brazil, Argentina, Guatemala; 2) c. Vatican City, Ireland, UK, Sweden
, 3) b. UK, China, UAE, India; 4) c.India, Chile, Bolivia, Uruguay; 5) b. 34 |
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