OIPD-12 IN THE HIGH COURT AT CALCUTTA Intellectual Property Rights Division ORIGINAL SIDE IPDAID/31/2024 [OLD NO AID 7/2021] NEOCULI PTY LTD. VS THE CONTROLLER OF PATENTS AND DESIGNS AND ANR. BEFORE: The Hon’ble JUSTICE RAVI KRISHAN KAPUR Date: 24th March, 2025. Appearance: Mr. Subhatosh Majumdar, Adv. Mr.K. K.Pandey, Adv. Ms. Mitul Dasgupta, Adv. Mr. Teeshan Das, Adv. Ms. Pooja Sett, Adv. Ms. Mallika Bothra, Adv. …for the appellants Mr. Indrajeet Dasgupta, Adv. Ms. Priti Jain, Adv. …for the respondents The Court:- The grievance of the appellant is directed against an order dated 16th June, 2021, whereby the Assistant Controller of Patent and Designs, Kolkata has rejected the subject application for patent. Briefly, the subject invention relates to an antibacterial pharmaceutical composition comprising of: (a) A therapeutically effective amount of robenidine or a therapeutically acceptable salt thereof and (b) A compound or agent that removes or substantially removes or reduces the integrity of the cell wall of the bacterial chosen from the list consisting of: chosen from the list consisting: B-lactams, fosfomycin, lysozyme, polymyxins, chelating agents, and immunological agents. 2 (c) A pharmaceutically acceptable excipient or carrier. Thus, the actives used in the composition are robenidine and a cell wall disruptor, a compound that removes or substantially removes or reduces the integrity of the cell wall of the bacteria. The composition is formulated for use against a Gram-negative bacterium. The impugned order has been passed on the following grounds: A. The subject invention lacked inventive steps under Section 2(1)(j) of the Patents Act, 1970 in view of the cited prior arts (D1-US 3954996, D2-US 4041160, D3-VICTOR G STANLEY ET AL: and D4-HANSEN M ET AL. B. The subject invention was not patentable under section 3(e) of the Patents Act. There was no synergistic effect of composition and invention and the same is a mere admixture resulting in aggregation of the properties of the components of composition. C. Non-sufficiency of disclosure in the specification under section 10(4) of the Patents Act. On behalf of the appellant, it is contended that none of the prior arts D1 to D4 cited by the respondent alone or in combination destroy the inventive steps of the invention or teaches the invention in any manner whatsoever as D1 and D2 does not even speak of gram negative bacteria. None of the other prior arts either alone or in combination teach the effect of Robenidine and cell disrupting agent on gram negative bacteria. There is nothing in the impugned order which goes to suggest that the four cited 3 documents either by themselves or in combination teaches or suggests the subject invention of the appellant. In effect, none of the prior arts are applicable to the present invention and the impugned order is inconsistent and irreconcilable to the teachings of the subject invention. It is further contended that the specifications contain extensive data to demonstrate the beneficial effects of the invention, and also show as to how the two actives in combination impart benefits which are unexpected and inventive in nature. There has been no consideration of the experimental results shared as evidence to show the inventive steps and synergy of the invention. Thus, it is contended that the conclusion that the subject invention lacked inventive steps is erroneous and without basis. It is also submitted that the analysis regarding the applicability of section 3(e) of the Act is also unreasoned and unsubstantiated. On behalf of the respondent authorities, it is fairly submitted that the impugned order is lacking in clarity and there has been no consideration of the data and evidence provided by the appellant either in their specifications or the additional evidence. In view of the submissions made on behalf of the respondent and in view of the non-application of mind, the failure of the respondent no 2 in properly investigating and examining the subject application and dealing with the prior arts in a preconceived manner the impugned order is unsustainable and set aside. The matter is remanded to the Controller who shall complete the hearing of the subject application afresh within a period of 12 weeks from the date of communication 4 of this order. To obviate any element of predetermination, the Controller is directed to appoint any other Hearing Officer to act in terms of the above directions. It is made clear that there has been no adjudication on the merits of the case and all issues are left open to be decided afresh by the Hearing Officer. To the above extent, IPDAID/31/2024 stands allowed. (RAVI KRISHAN KAPUR, J.) Arsad, AR(CR)