Our readers may remember an article from last August’s KASS IP Exposé where Singapore Patent No. SG 49307 entitled “Microbial Oil Mixtures and Use Thereof” owned by Martek Biosciences Corporation was revoked by the Registrar of the Intellectual Property Office of Singapore (IPOS).

Martek had since filed an appeal at the Singapore High Court against the decision of the Registrar and the appeal was decided on 29 March 2011.

As a recap, SG 49307 is based on UK Patent Application No. 92904388.3 which was re-registered in Singapore based on the transitional provision of the Singapore Patents Act and subsequently granted on 10 January 2002.

The patent application was amended in 1999 prior to the grant of the patent application. Martek also submitted amendments to the granted claims twice in 2006 and 2008 pursuant to Section 83 of the Patents Act and rule 80(3) of the Patents Rules.

The Registrar found and held that:

• all the claims amended in 1999 were not patentable.
• claim 30 in the list of amended claims filed in 1999 disclosed matter that extended beyond that disclosed in the application as originally filed either implicitly or explicitly.
• some of the amendments proposed in 2006 and 2008 extended the scope of protection of the patent as granted or were lacking in inventive step.

Cargill argued during the proceedings that the patent was invalid because it was not novel, not inventive and the description was not sufficient to be considered an enabling disclosure. During the hearing of the appeal at the High Court, Martek was able to convince the Court that the invention in question, i.e. an improved infant formula with a blend of only a microbial DHA-containing oil and a microbial ARA-containing oil is novel and inventive over and above all the cited prior art. Martek was also able to show that the patent description has sufficiently described the invention, including the preferred embodiments for it to be considered as an enabling disclosure.In view of these findings, the Registrar ruled that SG 49307 was invalid.

The High Court allowed the appeal and dismissed the revocation proceedings and it found that the patent fulfilled the requirements of novelty, inventive step and sufficiency.

This is one of a number of patent revocation proceedings between Martek and Cargill, with the latter being successful in getting some of the Martek’s Singapore patents revoked. In view of the latest developments, we believe Martek will be involved in getting the previously revoked patents reinstated.