Danone’s Nutricia unit has defeated a challenge by New Zealand’s dairy cooperative Fonterra to registration of an Australian patent for the use of a nutritional pill for increasing weight gain in frail, elderly people.
IP Australia delegate S. J. Smith on Tuesday rejected all six grounds of opposition by Fonterra, whose brands include Anchor Milk and Western Star butter.
The patent, titled Non-Medical Increase or maintenance of body weight of a mammal, was filed with IP Australia by Nutricia in August 2011. Fonterra Cooperative challenged the patent, saying among its six grounds of opposition that it lacked novelty and inventive step.
The invention specifies use of a composition comprising at least four components selected from a group of fatty acids, vitamin B, phospholipids, antioxidants, cholines and a uridine source to increase or maintain body weight in mammals.
Nutricia told IP Australia that mice fed variations on the nutritional composition gained weight compared to mice on a controlled diet.
The specification says the pill, or powder, could be used by elderly people to gain or maintain weight without them having to increase daily caloric intake.
In dismissing Fonterra’s opposition on the grounds of lack of novelty, the delegate said Nutricia’s patent was not anticipated by Nestle and Carnation breakfast drinks currently on the market because none of those drinks contained uridine.
The delegate also rejected Fonterra’s argument that the patent lacked inventive step because the weight-increasing properties of many of the components specified by the patent were common general knowledge.
“In my view this is not sufficient to render the use of a uridine source in a composition comprising the defined combination of integers and administered without essentially increasing daily caloric intake when seeking to support weight maintenance or gain in an older population obvious,” the delegate said.
“For at least this reason I am not satisfied that the evidence establishes that a skilled person would, as a matter of routine and in light of the common general knowledge alone, arrive at the presently claimed invention.”
The case is Fonterra Co-operative Group Limited v N.V Nutricia
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