From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 3 August 2015

No traditional knowledge for hair loss treatment: another alleged attempt to patent traditional knowledge does not bear scrutiny

This Kat was perusing the Pune Mirror, and came across another allegation that the Traditional Knowledge Digital Library, a unit of the Council of Scientific and Industrial Research (CSIR-TKDL), had once again thwarted an attempt to get a patent: this time on a medicinal composition containing turmeric, pine bark and green tea for treating hair loss.  The source of the article was a statement released by the Indian Ministry of Science and Technology.  It bears repeating in full:

India Foils UK Company’s Bid to Patent Use of Turmeric, Pine Bark & Tea for Treating Hair Loss 
India once again has been successful in protecting its traditional knowledge by preventing an attempt made by Europe's Leading Dermaceutical Laboratory-Pangaea Laboratories Limited, to take patent on a medicinal composition containing turmeric, pine bark and green tea for treating hair loss. 
Traditional Knowledge Digital Library (TKDL), a Unit of Council of Scientific and Industrial Research, located the patent application filed at European Patent office by M/S Pangaea Laboratories Limited and filed pre-grant opposition along with prior-art evidences from TKDL, proving that turmeric, pine bark and green tea, are being used as a treatment for hair loss, since long in Indian systems of medicine like Ayurveda and Unani. The above UK based company had filed the patent application at European Patent office in February, 2011. CSIR-TKDL Unit had filed evidences from TKDL on January 13, 2014 after the patent application got published on website, pursuant to which the patent application is finally deemed to be withdrawn by the applicant on June 29, 2015. Till date CSIR-TKDL Unit has achieved success in about 200 such cases without any cost. 
Recently, CSIR-TKDL Unit has foiled an attempt of M/S Colgate-Palmolive Company to patent a mouthwash formula containing herb (Nutmeg- Jayaphal) extract used in Indian traditional systems of medicine to cure oral diseases, at European Patent office. 
Traditional Knowledge Digital Library of Council of Scientific and Industrial Research (CSIR-TKDL), headed by Dr. Archana Sharma, submitted proof in the form of references from ancient books in this case, which said the herb and its extracts of Myristica Fragrans were historically used for oral diseases in Indian systems of medicine. 
The last time that this Kat saw such a statement, he unleashed Tufty the Cat to investigate, and you can read the resulting blogpost here.  This relates to the Colgate-Palmolive Company patent application on a mouthwash, referred to in the penultimate paragraph of the above statement.  (Tufty has analysed a further 23 claims for the TDKL here and concluded that 15 out of the 23 are false).  Reluctant to call in a feline favour for a second time in two weeks, this time he decided to investigate himself.  Of course, the statement above makes no mention of anything useful such as the patent application number, but this Kat tracked it down from the applicant and filing date as 11154255.1. publication number EP236160.

Regular readers will be unsurprised that the truth is rather different from what the statement portrays.

The problem in this case is that the patent application concerned is hardly about "turmeric, pine bark and green tea" at all.  Claim 1 as originally filed reads as follows:
A method of treating hair comprising the steps of: a) providing a hair building solid agent for use on, or with, one or more of hair, skin and hair building solids for altering and/or maintaining the electrostatic charge of the hair and/or skin such that it has a substantially negative polarity; b) applying said hair building solid agent (30) to one or more of hair (10), skin and hair building solids (20); c) providing hair building solids; and d) applying hair building solids (20) to hair (10) before and/or during and/or after applying the hair building solid agent (30); characterised in that the hair building solid agent (30) is applied as a spray on to one more of the hair (10), skin and hair building solid (20).
See any reference to turmeric, pine bark and green tea? No, because (although the application is admittedly somewhat unclear) what is presented as inventive in the application and in claim 1 is achieving an electrostatic effect in the interaction of hair building solids with hair.  This is obtained by use of a naturally amphoteric substance such as: a surfactant, a conditioner, cocamidopropylbetaine, dodecylbetaine, cocoamphoglycinate, oleyl betaine, soyamidopropylbetaine and an amino acid; in combination with a water resistant agent, such as octylacrylamide copolymer, C12-22 alkylmethacrylate copolymer, PVP/dimethylaminoethylmethacrylate copolymer, polyquaternium 69, isobutylene ethylmaleimide copolymer, isobutylene hydroxyethylmaleimide copolymer, polymethylsilsesquioxane and polyurethane-14 AMP-Acrylates copolymer.  (If these terms mean nothing to you, worry not - all you have to know is that they are not turmeric, pine bark, or green tea.)

You have to get to claims 10 and 11 before you can even guess what all the fuss is about.  These read as follows:
10. The method of any preceding claim, in which the hair building solid agent (30) includes one or more pharmacologically active ingredient for treating one or more of hair loss, thinning hair and skin conditions.
11. The method of claim 10, wherein the pharmacologically active ingredient is one or more of finasteride, dutasteride, spironolactone, minoxidil, nitric oxide donators, β-glucan, saw palmetto, resveratrol, curcumin, marine extracts, polycyanidins, superoxide dismutase, superoxide dismutase mimetics, taurine, plant sterols, pine bark extract, melatonin, green tea, caffeine, copper peptides, copper PCA, EUK-134, copper(II) 3,5-disopropylsalicylate, dimethylmethoxy chromanol, catalase, catalase mimetics and hydrolysed lupine protein.
The European Search Opinion of 19 July 2012 raised objections of novelty based on four documents against several of the claims, including claims 10 and 11.  The closest state of the art was considered to be D1 (WO 2008/135979), which was considered novelty destroying for claim 10, and in respect of claim 11 it was stated "All compounds mentioned as further ingredients in the composition are well-known in the fields of hair treatment as described as such in the present application".

The application cannot be fairly described as trying to "patent" the claim 11 ingredients at all - the application is simply clarifying that the composition can additionally include conventional components for their known uses.  This view is confirmed by the comment of the Examiner.  Of  course, the patent, if granted, would cover, in the sense of being infringed by, the presence of additional components (provided the requirements of claim 1 were complied with) whether they were specifically recited in a dependent claim or not.

So what then happened?  Well, the applicant filed amended claims and arguments against the European Search Opinion, and the the TKDL third party observations were filed.  The Examiner objected to the amended claims in a Communication of 21 January 2015 on the grounds of added matter, relating to a method of medical treatment, and clarity.  About the third party observations, it was stated:
The comments developed in this [the third party observations] filing concern mainly the subject-matter of original claims 10, 11 and 12, which relate to the introduction of pharmacologically active ingredients.
The third-party observation has been taken into account.
From this it can be seen that they played no part in the examination at all.  The examination report was not responded to, and the application has now lapsed.

So the statement by the Indian Ministry of Science and Technology is pretty much untrue - there was not in any real sense an attempt to "patent" use of "turmeric, pine bark and green tea for treating hair loss", and nothing that the TKDL did had any influence on the examination so India has not "foiled" the attempt to get a patent anyway.  Any announcement is in any case premature, since the applicant can still file a response and revive the application using "further processing" up to 9 September 2015. This Kat hopes that they do.

One more "false" to add to Tufty's list.  When will this misleading propaganda stop?

10 comments:

Anonymous said...

"The third-party observation has been taken into account."

This is a little ambiguous. Taken alone, you can see how an uninformed reader might suppose that the TKDL observations played a part in the Examiner's objections. It is only when you analyse the file in more detail that you realise they didn't.

At one time, EPO examiners were free simply not to mention third party observations that did not assist their deliberations. No doubt this was frustrating for third party observers, who couldn't tell from the public file whether the Examiner had even read their observations. So more recently, I understand that Examiners have been told to make that clear.

I'd guess that the ambiguous phrase "the third-party observation has been taken into account" is a template that Examiners have been told to follow. Perhaps it should be amended to something clearer?

E.g. "The third-party observation has been considered but does not give rise to an official objection"?

Or even just "The third-party observation has been considered"?

Anonymous said...

To anon @ 13:57
What difference do you see between "The third-party observation has been taken into account" and "The third-party observation has been considered"?

MaxDrei said...

Readers pondering how the EPO alights on wordings for standard sentences in English might bear in mind how very few English native speakers there are within the EPO. They might then share with me the suspicion that standard blocks of text are formulated and worked up, all in German. Later, the standard wording needs to be rendered into English, and the English words selected (here: "taken into account") are prompted by the original wording in German, which here might be something like "zur Kenntnis genommen".

When the EPO writes to a party in German, what is the corresponding wording for the English "taken into account"?

And is there a French speaker here? Does the French equivalent also use the word "take".

Another reason for disfavouring "consider" might be a reticence for taking on more responsibility than necessary. Once you say you "considered" a document you are at risk if you missed something. But what if instead you choose to say that you only "took it into account"? Might you not feel that this form of words gives your Division more wiggle room and plausible deniability, in the event that your assessment of the document was flawed. Just a thought.

Anonymous said...

Monday's Anon here.

To Anon at 08:17 - To me "taken into account" suggests that the observations could have influenced the official objections - which they evidently didn't. "Considered" just confirms that the Examiner read them, but nothing more.

To MaxDrei - I'm not convinced that examiners feel the need for plausible deniability. But even if they do, doesn't "taken into account" carry the same risk if the Examiner missed something?

Anonymous said...

Overly pedantic semantics between "consider" and "take into account."

Seriously folks - these things carry the SAME connotation.

Both of them mean that you have taken into your thought processes that which was offered for that purpose.

If you start trying to "mince words" here, and even fall back to some sort of multilingual "excuse," what then? No matter what term you come up with in one language, you necessarily have to translate that term - and will ALWAYS have the "translation" excuse.

As such, why even bother offering up that thought for consideration?

MaxDrei said...

People, let's remember that at the EPO what matters is what a string of words in English "mean" is what that string "means" to somebody whose knowledge of English is that of a foreign language. At the EPO we are in the Babelian world of Globish, Denglish and Franglais. It is not what "taken into account" or "considered" means to a native English speaker that counts. Rather, what matters is the meaning that these words convey to a German speaker.

Thus, in the case of "Die sensible Dame mit dem braven Hund", nobody is saying that the dog is brave and nobody is saying that the lady is sensible, OK?

Anonymous said...

Examiners may well want to 'consider' or 'take into account' TPO's, but they do not have much choice. OJ 2011 420 prescribes 'will be considered by the examining or opposition division, which will then comment on the relevance of the observations in the next substantive communication to the parties of the proceedings'

They have to consider, and comment on the relevance. Nothing more, nothing less

Meldrew said...

And how does "The third-party observation has been taken into account" indicate the relevance or otherwise of the 3PO?

Comments such as "the examiner agrees with the 3PO..." [sometimes seen] or "the examiner considers the 3PO a load of tosh..." [rarely seen] do explicitly indicate relevance.

Simply indicating "I have looked at the 3PO" provides negligible informational value (except perhaps by inference), and certainly does not meet the stated aim in the OJ notice that:-
"The EPO has also changed its practice to ensure that examining and opposition divisions comment explicitly on the relevance of third party observations".

Anonymous said...

Taking Meldrew's point that the Examining Division is supposed to comment explicitly on the relevance of the 3PO, how should we understand "The third-party observation has been taken into account."?

It could mean simply "I considered it". In that case, it fails to meet the OJ requirement.

Or it could mean "I took it into my thought process". And indeed, these might all come to the same thing, as Anon 12:08 argues.

But this same thought process is what resulted in official objections to the patent application. Which opens the possibility to draw an inference: that the 3PO played a part in reaching the official objections.

True, while that inference is possible, it does not inevitably follow from "the third-party observation has been taken into account." And it looks to be unfounded if you dig deep enough.

But it is an inference that helps give the appearance of meeting the OJ requirement, which gives it a little credibility. And it is the inference that CSIR-TKDL is promoting strongly.

So we have two phrases which on their face mean the same thing. One has a possible inference, that the Indian Government can exploit in propaganda about how awful Western patents are, and how effectively they are fighting them. The other doesn't. Which is the better phrase to use?

Anonymous said...

My Anonymous friend @ 16:39, the meaning is more than just the same on their face - hence what you advice is nothing more than a game of who can best spin the rhetoric.

(we are already playing that game)

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