Edmund Kok, ATMD Bird &Bird
On 29 March 2011, the Singapore High Court ruled in favour of Martek Biosciences Corporation in its case against Cargill International Trading (Martek Biosciences Corporation v Cargill International Trading Pte Ltd [2011] SGHC 71), restoring Martek’s patent, which had earlier been revoked ([2009] SGIPOS 16) and dismissing Cargill’s claim that Martek’s patent is invalid.
Martek develops nutritional products. Its Singapore patent is entitled Microbial Oil Mixtures and Uses Thereof and is directed towards two inventions. The first invention is an infant formula supplement comprising two microbial oils, one containing arachidonic acid (ARA) and another containing docosahexaenoic acid containing microbial oils. The second invention is a blend of fish oil containing eicosapentaenoic acid and a microbial oil containing ARA, to produce a long chain polyunsaturated fatty acid that contains infant formula supplement.
Cargill is a Singapore-based company providing food and agricultural products and services. In 2009, Cargill succeeded in an application before the Intellectual Property Office of Singapore (IPOS) to revoke Martek’s Singapore patent under section 80(1) (a) of the Patents Act. Cargill relied on ten prior art documents and alleged that the patent claims were not novel and inventive 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.
During the Court proceedings, Cargill informed the Court of its decision to withdraw one of their expert witnesses despite not withdrawing his statutory declaration. This meant that Martek did not have the opportunity to cross-examine the witness. O 38 r 1(2) of the Rules of Court provides that a witness’s affidavit will not be received in evidence if he is not cross-examined. While O 38 r 1(2) applies to actions started by writ and not usually to hearings before IPOS, the Court decided that O 38 r 1(2) should also apply here as witnesses’ statutory declarations are analogous to affidavits in court.
In general, the Court preferred the evidence presented by Martek and even commented that its evidence “was almost completely unchallenged” by Cargill. The Court therefore agreed with Martek that the inventions were not anticipated by any prior art and did contain inventive steps. The Court also found that the claims met the requirement of sufficiency because Cargill provided no evidence to prove that the invention was unworkable from the point of view of a skilled addressee. Therefore, the Court restored the revoked patent.