The Intellectual Property Appellate Board (IPAB) has upheld an order of the Controller of Patents & Designs refusing patent to FMCG major Hindustan Unilever (HUL) for an invention called ?water-in-oil microemulsions for hair treatment?.

Dismissing an appeal by HUL against the patent controller’s order, IPAB said it did not see any inventive step. The ?invention? is related to a liquid mixture of water, oil and surfactant, claimed to enhance sensory properties and compatibility with hair benefit ingredients, such as hair-conditioning agents. HUL has a slew of hair-care products.

The patent application was filed in 2007 and there were a total of 15 claims by HUL in this regard before the Mumbai Controller of Patents & Designs.

In 2011, after hearing out the company?s case, the controller refused to give patent to HLL, saying that it was just a prior art and not an invention. Subsequently, HUL moved IPAB with an appeal against the order. While approaching IPAB, HUL had submitted amended claims to further support its claim.

The IPAB bench, consisting of Prabha Sridevan, chairman and DPS Parmar, technical member (patents), rejected the appeal and said, ?Since we do not find any inventive step, we are not looking into the amended claims that are produced before us. In any event, the case indeed put forward before us is that it is the reduced percentage of water that is the invention whereas in the patent specification it was the inclusion of the nonionic emulsifier, the inclusion of which is taught by the prior art. For these reasons, we are not inclined to interfere with the order of the controller. The appeal is dismissed”.

In response to an e-mail query by FE on the IPAB order, an HUL spokesperson said , ?This patent application was not specific to a particular brand. It relates to a water-in-oil microemulsion for hair treatment having various ingredients and a hair-conditioning agent.?

The controller, while refusing the patent to HLL, had held that the problems solved by the present invention was to incorporate hair benefit ingredients, such as hair-conditioning agents, into an oil phase in order to obtain a water-in-oil micro emulsion that was stable. The controller held that the oil phase formulation of present claims was merely one of several straightforward possibilities from which the skilled person would select, in accordance with the circumstances, without the exercise of inventive skill. The claim does not constitute an invention under section 21(J) of the Patents Act, 1970, does not involve an inventive step in view of US Patent Act and hence not patentable, the controller maintained.

The IPAB order said that the International Search Authority had given its opinion, pointing out prior arts. It was stated that though the claims were novel, they cannot be said to be inventive.

In response to the objections, the stand of the HUL was that the invention lies in the particular type of nonionic emulsifier that marked it from the prior art. The invention lies in combination of water in existing 10% by weight, based on total weight of the microemulsion, the company argued.

?It is therefore clear that the controller found the person skilled in the art would have been taught to arrive at this water and oil microemulsion as being claimed to be the invention. If the aim of the invention is to arrive at a hair treatment that is less hazy, it would have been obvious for the person skilled in the art to try including water between 50% and 80% and also less than 10%?, the IPAB bench said.