The Delhi High Court, in Croda Inc. vs Controller of Patents [(C.A.(COMM.IPD-PAT) 490/2022; 2025:DHC:6925; decision dated on August 4, 2025], dealt with an appeal arising from the refusal of Croda’s patent application number 1432/DELNP/2013 entitled “Agrochemical Adjuvants and Formulations”. The subject application aimed to address the antagonistic effects between selective and non-selective herbicides through formulations comprising an ethoxylated fatty acid mono-ester of sorbitan of formula (I). The Controller refused the application on two main grounds: lack of inventive step under Section 2(1)(ja) and non-patentability under Section 3(e).

Croda argued that the refusal was flawed because:

• None of the cited prior arts (D1-D3) neither disclosed the claimed formulation nor provided any motivation to a person skilled in the art (PSITA) to lead to the claimed invention.
• Prior art document D3, which was relied on in the impugned order to hold that the invention lacked inventive step and was non-patentable, was never cited in the hearing notice or during the hearing, and hence the Appellant had no opportunity to respond to it.
• The reliance on document D3 for refusing the subject application was violative of the principles of natural justice.

The Controller asserted that consideration of document D3 was an error on the part of the Patent Office, and that the claimed invention was obvious and a mere admixture of known substances without any synergistic effect.

The Court observed that the impugned order substantially relied on document D3 in objecting to the inventiveness and patentability of the claimed invention, even though it was never cited in the hearing notice. This omission, the Court remarked, deprived the Appellant of a fair opportunity to respond. The Court stressed that the Patent Office, by its mandate, does not operate in an adversarial capacity against the applicants, but exercises quasi-judicial powers, and, therefore, must follow the principles of natural justice, which include giving the applicant prior notice of all objections and cited prior arts. Reliance was placed on the decisions in:

• UCB Pharma GmbH vs Controller of Patents (Calcutta High Court, 2025 SCC OnLine Cal 3002) wherein the Controller had relied on prior art documents not mentioned in the hearing notice but introduced during the hearing. The Court held that such practice was impermissible and “any objection to the prior art must be known to the applicant before the date of hearing”.
• Man Truck Bus SE vs Assistant Controller of Patents (Delhi High Court, 2024 SCC OnLine Del 874), where a prior art was relied upon in the refusal order though it had not been cited either in the First Examination Report (FER). The Court quashed the refusal, holding that omission to cite the prior art earlier in the hearing notice or any time prior to the same deprived the applicant of a fair opportunity of reply.

In conclusion, the Court remarked that “relying on prior arts in the impugned order for the first time that were not discussed or considered in the FER or the Hearing Notice clearly vitiates the Impugned Order and is against the principles of Natural Justice”. Accordingly, the Court quashed the impugned order and remanded the matter to the Patent Office for fresh consideration.