1. Third Party Observations under Article 115 of EPC

TKDL third party submission under Article 115 EPC brought to the notice of examination division the prior art references on the use of Cucumis Melo (Kharbooza/Melon) for the treatment of leucoderma / vitiligo from the books – Quaraabaadeen Najm-al-Ghani by Mohd. Najmul Ghani Khan (Unani, Exhibit 1), Khazaain-al-Advia, by Mohd. Najmul Ghani Khan (Unani, Exhibit 2), Muheet Azam by Mohd. Azam Khan, (Unani, Exhibit 3), Khazaain-al-Advia, by Mohd. Najmul Ghani Khan, (Unani, Exhibit 4) and Muheet Azam by Mohd. Azam Khan (Unani, Exhibit 5).

2. Relevant extract of EPO Examination Report

EPO Patent Examiner(s)  took cognizance of TKDL references. Extract of examination report are reproduced below:

“ The Examining Division has become aware of new prior art (Third party Observation under Article 115 of the EPC).

The application claims the usefulness of a combination of five constituents for the treatment of vitiligo, one of these  constituents being a 1:2 watery extract of Cucumis melo containing catalase and superoxide dismutase.

However, Cucumis Melo has been known for its anti-vitiligo property through local application in the Indian system of medicine, since long, as is evident e.g.  from the Exhibits 1-5 (TKDL abstracts) as cited in the Third party Observation under Art. 115 EPC.

Hence, if one ingredient, here Cucumis Melo, was already known for the treatment of vitiligo, then it had to be expected necessarily in an obvious manner that also a combination product comprising this known active ingredient must be effective for treating vitiligo.

Thus, as long as no surprising (superior) effect of the claimed combination product vis-à-vis the already known products comprising Cucumis Melo, as described in the Exhibits 1-5 and in D2, are shown by the Applicant (for instance in the form of additional technical data), inventive merits under Article 56 EPC cannot be acknowledged.”

Full examination report can be referred at EP1747786.pdf

3. Outcome of Third Party Observation and Examination Report

As the outcome of TKDL third party and other documents cited in examination report Applicant M/s Perdix Eurogroup, S.L., Spain, decided not to pay the renewal fee of his 5 years old application filed on 24.07.2006, which he did pay for 5 years. The intention to grant patent was set aside on 27.07.2009. Decision to refuse the application from the Examining Division was taken on 01.07.2011 and application was closed on 11.10.2011.