Martek Biosciences Corporation v Cargill International Trading Pte Ltd
Jurisdiction | Singapore |
Judge | Tay Yong Kwang J |
Judgment Date | 03 May 2010 |
Neutral Citation | [2010] SGHC 135 |
Year | 2010 |
Date | 03 May 2010 |
Published date | 03 August 2010 |
Hearing Date | 12 March 2010 |
Plaintiff Counsel | Lai Tze Chang Stanley SC, Vignesh Vaerhn and Lim Ming Hui Eunice (Allen & Gledhill LLP) |
Citation | [2010] SGHC 135 |
Defendant Counsel | Daniel Koh (briefed) (Eldan Law LLP) and Wendy Low Wei Ling (Rajah & Tann LLP) |
Court | High Court (Singapore) |
Docket Number | Originating Summons No 1418 of 2009; Summons No 234 of 2010 |
Both Martek Biosciences Corporation (the “Applicant”) and Cargill International Trading Pte Ltd (the “Respondent”) are in the infant formula business. The Respondent commenced proceedings to revoke the Applicant’s Singapore Patent P-No. 42669 (“the Patent”) under section 80(1)(a) and (c) of the Patents Act (Cap 221, 2005 Rev Ed). After a four-day hearing, Deputy Registrar of Patents Danielle Yeow and Principal Assistant Registrar of Patents Isabel Chng (“the Tribunal”) in
The Patent was entitled “Arachidonic Acid and Methods for the production and use thereof” and the published abstract reads as follow:
The present invention relates to processes for the production of arachidonic acid containing oils, which preferably are free of eicosapentaneoic acid. This invention also relates to compositions containing oils of very high amounts of arachidonic acid in triglyceride form, and to uses of such oils. In a preferred embodiment,
Mortierella alpina is cultivated using conditions which yield triglyceride oil having particularly high levels of arachidonic acid residues, biomass is harvested and the oil is extracted, recovered, and used as an additive for infant formula.
The Patent further explained the nature and functions of arachidonic acid: that it serves a primary role as a structural lipid and acts as the direct precursor for a number of circulating eicosenoids [
Despite its importance to human metabolism, arachidonic acid cannot be synthesized in humans
The Patent stated that no commercial infant formula known to the Applicant contained arachidonic acid in triglyceride form and it also cited some unsuccessful attempts made in the quest for obtaining arachidonic acid.
The Respondent, in its application to revoke the Patent, cited ten prior art enumerated D1 to D10 respectively. The Respondent alleged that the Applicant’s patent claims were not patentable and that the patent specification did not disclose the invention clearly and completely for it to be performed by a person skilled in the art.
Pleadings to the revocation proceedings commenced on 20 January 2006. The revocation hearing was conducted before the Tribunal from 9 to 12 February 2009. The Tribunal rendered its grounds of decision on 3 November 2009.
In the Appeal, the Applicant will be contending that the Tribunal erred in law and in fact in finding,
Pending the hearing of the Appeal, the Applicant took out Summons No 234 of 2010/Q (“the application”) pursuant to Order 55 rule 6(2) and/or Order 87A rule 13(2) of the Rules of Court (Cap 322, R 5, 2006 Rev. Ed.) (“ROC”) to apply for leave to conduct the experiment described in prior art reference D4a and to adduce evidence of and relating to the same (“the fresh evidence”).
D4 (D4a being the English translation of D4, the original Japanese text) was a document cited by the Respondent as one of the prior art references before the Tribunal. During cross-examination before the Tribunal, it transpired that the Respondent’s witness, Dr. William R. Barclay (“Dr. Barclay”), had not personally conducted the experiment described in D4a.
The adduction of further evidenceAs this was the first case in Singapore which involved an application to adduce further evidence for a patents revocation appeal against a Tribunal’s decision, counsels for the Applicant and the Respondent sought to draw analogies with adduction of further evidence:
The principles governing the adduction of further evidence appear to differ according to the nature of appeal from a lower adjudicating body to an appellate body. Hence, an analysis of the nature of an appeal from the Registrar of Patents (
O 87A r 13(2) ROC which governs the nature of an appeal from a decision of the Registrar of Patents (
Order 87A rule 13
The wording of O 87A r 13(2) ROC should be compared and contrasted with O 55 r 2(1) ROC:
Order 55 rule 2
The High Court hearing an appeal from a lower court, tribunal or person is vested with powers to require further evidence on questions of fact and the evidence may be given in such manner as the Court may direct, either by oral examination in Court, by affidavit, by deposition taken before an examiner or in some other manner (see O 55 r 6(2) ROC).
An Appeal from the High Court to the Court of AppealO 57 r 13(2) ROC stipulates that the Court of Appeal has the power to receive further evidence on questions of fact by oral examination in court, by affidavit, or by deposition taken before an examiner. However, in the case of an appeal from a
The principles governing the granting of leave to adduce further evidence before the Court of Appeal were stated in
O 87 r 4(2) ROC which governs the nature of appeal from the Registrar of Trade Marks to the High Court states as follows:
Order 87 rule 4
The Singapore Court Practice 2009, in commenting on O 87A r 13(2) ROC, states that the term “rehearing” in relation to O 87 ROC concerning trade marks was not to be understood as referring to a full
The Applicant submitted that it should be granted leave to adduce the fresh evidence for the following reasons:
The Applicant submitted that in “rehearing” the Appeal, this court is entitled to revisit the totality of the evidence tendered before the Tribunal below. In other words, the Applicant pitched its case as such: an appeal from the Patents Registrars to the High Court under O 87A r 13(2) ROC is analogous to that of an appeal from a tribunal to the High Court under O 55 r 2(1) ROC.
Following this logic, when hearing the Appeal, this court is not fettered by any principle limiting its discretion and is free to come to...
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Martek Biosciences Corporation v Cargill International Trading Pte Ltd
...On 12 March 2010, the Judge dismissed the Interlocutory Application (see Martek Biosciences Corp v Cargill International Trading Pte Ltd [2010] 3 SLR 927 (“the High Court GD”)). At this juncture, we ought to explain that D4a is a patent in Japan relating to a skin cosmetic product which als......
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Martek Biosciences Corp v Cargill International Trading Pte Ltd
...On 12 March 2010, the Judge dismissed the Interlocutory Application (see Martek Biosciences Corp v Cargill International Trading Pte Ltd [2010] 3 SLR 927 (“the High Court GD”)). At this juncture, we ought to explain that D4a is a patent in Japan relating to a skin cosmetic product which als......
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Civil Procedure
...Trading Pte Ltd [2011] 1 SLR 1287 (‘Martek’), the Court of Appeal dismissed an appeal against the High Court“s decision (see [2010] 3 SLR 927) not to grant leave to the appellant to adduce further evidence in an action in the High Court challenging the decision of the deputy registrar of pa......