The Delhi High Court (DHC), has appointed an Amicus Curiae to determine issues relating to patentability under ection 3(i) of the Patents Act.

To decide two appeals filed by, SEQUENOM INC & ANR., and EMD MILLIPORE CORPORATION, the Court has appointed an Amicus Curiae. Both the appeals require adjudication qua Section 3(i) of the Patents Act, 1970.

The first application is, Patent application bearing no. 3139/DELNP/2012 and the same has been rejected on the ground that it is a non-patentable invention under Section 3(i) of the Patents Act, 1970 (hereinafter, “Act”). The submission of ld. Counsel for the Appellant is that the disclosed invention relates to a screening test, and not a diagnostic test. Reliance is placed upon the difference between a screening test and a diagnostic test to argue that until the foetus is born, there would be no diagnosis and only a screening of the foetus to check as to whether there is a possibility of the foetus suffering from any abnormalities. Therefore, he the subject patent would not be hit by Section 3(i) of the Act.

The second impugned order dated 18th February, 2021 is in respect of the application bearing no.1026/DEL/2012. The objection based on which the application has been refused is that the claimed process is a diagnostic process. The argument of the appellant is that the claims are directed towards a purely technical method of quantitation of one or more
biomolecules in a sample and not hit by Section 3(i).

The ld. Amicus has been directed by the Court to file submissions on the interpretation of Section 3(i) Patents Act, 1970 along with examples and case laws relied upon. The matter is next listed for hearing in March 2023.