IPAB revokes probiotic patent

The Indian Intellectual Property Appellate Board (IPAB) has revoked US probiotic dietary supplement maker Kibow Biotech’s Indian patent covering a formulation used to increase kidney function.

The Honourable Ms Usha, IPAB’s vice chairman, and the Honourable Shri Parmar found on November 13 that the invention was obvious due to a lack of inventive step.

Indian drug maker La Renon Healthcare filed a petition to dismiss Kibow’s Indian patent 224100, which covers “compositions for augmenting kidney function”.

The patent was based on a Patent Cooperation Treaty application claiming authority of a US patent application.

The invention claims to contain at least one probiotic from the three strains of streptococcus thermophilus as well as a vitamin, mineral, carbohydrate, protein and fat, and/or a probiotic. The board found it was identical to an invention described in an existing US patent covering the method for preparation of nutritional frozen desserts.

Therefore the IPAB found the invention obvious.

The board also decided that the addition of other ingredients to the probiotic including vitamins and minerals has no inventive step, and that it is a mere admixture with no synergistic effect.

Kibow had previously filed a case at the Madras High Court alleging La Renon had infringed its 205478 and 224100 patent that was eventually dismissed.

A spokesperson for Kibow said that it was evaluating the pros and cons for appealing against the revoked patent at the Delhi High Court.

"We are not sure whether we will decide on this issue one way or other at this time," he said.

He added that although the process patent was revoked, the company's product patent 205478, which covers a novel method of “augmenting kidney function”, was upheld, which he described as a “major victory” for the company.

“When compared to a process patent, a product patent is infinitely more valuable as it permits the patentee to prevent third parties such as La Renon from making a copy of the product, irrespective of the process that they use to arrive at the product,” Kibow said in a statement.

La Renon did not respond to LSIPR’s request for comment.