The current post draws its reference from a pre-grant opposition filed by FEDERATION OF ALL INDIA TEA TRADERS ASSOCIATION (FAIITTA) to a patent application bearing no. 3293/CHE/2011 titled “Process for preparing fresh Tea with chocolate flavour”.

The Invention in summary relates to process for preparing fresh tea having chocolate flavour. According to applicant’s reply to FER, the method is very simple and comprises of a single step. For preparing tea with chocolate flavour, chocolate essence is mixed with tea powder. The object of the Invention was to provide a process for preparing fresh tea having chocolate flavour by specifying accurate quantities of the ingredients to be mixed.

The pre-grant opposition was filed on the ground that a) the Invention lacks Inventive step or obvious to a person skilled in the art b) Invention is against Public Order and Morality under section 3(b) and c) Invention is non-patentable under Section 3(e) of the Indian Patent Act.

Major arguments of opponent and applicant’s rebuttal for each of the ground are set out below:

• Invention lacks Inventive step:

Opponent’s arguments:

There are prior art documents which

1. 1. Disclose use of “chocolate flavour’ to add flavour to a tea based beverage
   2. Disclose methods of flavouring foodstuffs with the use of permitted flavours, including chocolate flavour
   3. Teach use of chocolate pieces/granules which are mixed into the beverage syrup

Applicant’s rebuttal to Opponent’s arguments:

1. 1. 1. The prior art documents fails to teach process for preparing fresh tea with chocolate flavor by mixing a definite/specific amount of chocolate essence with a definite amount of fresh tea powder.
      2. The invention is a simple one step process of preparation of the chocolate essence flavoured tea, whereby chocolate essence is the essence of the bean distilled in a solution and preserves the smell and flavour of the beans. The process being cost effective, easy to practice, provides enhanced improved organoleptic profile. The simplicity, cost effectiveness and ease of practicing the invention does not make the invention obvious as the opponents are inclined to allege, but rather makes the process technically advanced and inventive owing to its the advantages. The applicant’s argument was found persuasive by the Controller.

1. 1. • Invention being non-patentable under Section 3(b) as against Public Order and Morality:

The opponent took the ground that the Invention is against Food Safety and Standards Act and Regulations. According to Regulations, Tea shall be free from extraneous matter, added colouring matter and harmful substances. The opponent argued Tea to which an artificial flavouring agent has been added is under the Statute considered to an adulterated product.

Applicant’s rebuttal:

Applicant stated that section 3(b) of Indian patent Act has a wide ambit. The section is not a bar to the Invention, as the primary or intended purpose or commercial exploitation of a claimed invention is not causing any serious prejudice to any human, animal or plant life or health or to the environment.

The applicant also referred Section 29 (i) of Prevention of Food Adulteration Act, which states that `where two or more articles of primary food are mixed together and the resultant article of food is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause’ and the resultant article in the subject case being a combination of chocolate essence and tea.

The Controller was convinced with applicant’s argument and also added in his finding that the applicant anyway will have to comply Food safety regulation to bring the product in market. The purpose of Patent Act is different from a regulatory body and thus the patentability of an Invention cannot prevented due to regulatory rules. The life of a patent is 20 years, the regulations may be changed later on, but the patent cannot be restored at that time, thus the patent must not be rejected due to certain provisions in the Food safety regulation. The controller relying on the principle of natural justice, considered food safety standard as not a determining factor for the patentability.

1. 1. • Invention as non-patentable under Section 3(e) as being mere admixture of 2 components

The applicant submitted affidavit to prove the better effect of the end product of the claimed process. The applicant argued since the claimed process relies on the exact proportion of the ingredients and also the product obtained through the process shows better effect, therefore, the Invention was not a mere admixture.

To Sum up:

This decision breaks the myth that Invention must be related to highly complex technology for being crowned with patent rights. The test being even a simple Invention that solves a technical problem in a new and Inventive technical way deserves to be granted Patent.