Salil K. Roy Chowdhury, J.
1. This is an appeal under Section 116 of the Patents Act from an order refusing an application for patent under Section 15(2) of the Patents Act. The facts of the case shortly are as follows :
2. On the 4th September, 1972, the appellant filed an application for grant of patent in respect of an alleged invention relating to chemical process and products. Original objection was taken by the Controller of Patents to the said application on the ground that the complete specification filed related to more than one invention. Consequently the appellant filed a further application under Section 16 of the Patents Act in respect of an invention already disclosed in the complete specification filed in respect of the first mentioned application. The said application under Section 16 related to lobular Aluminium Chloride and was filed on the 80th October, 1975. The Controller's office objected to the said claims Nos. 1 to 8 of the said complete specification as being not allowable under Section 5(b) of the Patents Act, 1970. The Office of the Controller of Patents contended that the desublimation of Aluminium Chloride resulting in the particular lobular form involved chemical process and was, therefore, not patentable under the provisions of Section 5(b) of the Patents Act, 1970. The appellant contends that claim 1 related to a chemical substance, namely, aluminium chloride in solid form of a definite size and configuration produced inter alia by a process of desublimation of the gaseous effluent of aluminium chloride and that process of desublimation was a physical process not involving any chemical reaction. The Scientific Officer dealing with the matter by his order dated the 6th August, 1977, refused the application under Section 15(2) of the Patents Act, 1970. Consequently the present appeal was filed. The complete specification of the substance which is sought to be patented inter alia states as follows : 'Solid lobular aluminium chloride'. The invention relates to solid aluminium chloride and particularly aluminium chloride of the nature prepared by the process and apparatus described and claimed in Copending Indian Patent Application No. 1323/1972 and Indian Patent Application No. 1363/1972. Aluminium Chloride of high purity can be obtained by the process and apparatus described in the Copending Indian Patent Application referred to above. Such process results in the Formation of a preferred range of size of particles of aluminium chloride as well as selectively contoured particles of generally lobular configuration characterised by the substantial absence of generally planar exterior surfaces. Such configuration and range of particle size contribute to easy handling for subsequent electro-chemical conversion of the aluminium chloride to metallic aluminium. Desublimation as utilised herein refers to the direct formation of solid aluminium chloride from the gaseous phase thereof without any noticeable formation of an intermediate liquid phase.
3. The described desublimation of the aluminium chloride can be carried out at negative or vacuum pressures, for an example, down to about 0.1 atmosphere absolute as well as at positive or elevated pressures up to the pressure at which aluminium chloride would condense as a liquid under ambient conditions (up to about 10 atmospheres absolute), subject to considerations of partial pressure of the aluminium chloride present under the ambient condition.
4. In the practice of the invention any relatively pure gaseous aluminium chloride containing gaseous carrier from any convenient source can be utilised as a source material. Suitably, a gaseous effluent of the type obtained from a precursor chlorination of sodium contaminated alumina in the presence of carbon and from which concomitant entrained particles of solids and liquids and condensable volatile constituents or impurities which condense at a higher temperature than the upper condensation temperature of aluminium chloride under the corresponding ambient conditions have been preliminarily removed, as preferably employed as the desired relatively pure source material.
5. The aluminium chloride containing effluent source material which suitably comprises the residual hot gaseous effluent of the chlorination of sodium contaminated alumina may also contain chlorine, phosgene and carbon monoxide and dioxide, is of such character that, at a temperature between about 150-220C it is contacted directly within the fluidized bed of solid particles of aluminium chloride to directly desublime thereon and thereby endow the bed with a self replenishing character as well as providing for production of aluminium chloride of selective size and configuration providing advantageous handling and flow characteristics. More particularly such aluminium chloride will have an average particle size distribution of about 40-350 mesh, and predominantly about 100-350 mesh. The herein described fluidized bed condensation desublimation process leads to an acceptably fine solid aluminium chloride product at a low level of cooling energy which is particularly suited especially because of its particle size, configuration and purity, for direct utilisation in the electrolytic production of aluminium metal. Advantageously, the residual gaseous mixture that remains after the direct desublimation of the aluminium chloride values has been effected and which will normally be constituted mainly of carbon monoxide and carbon dioxide along with small amounts of hydrogen chloride, carbon tetrachloride, phosgene and chlorine may be recovered as effluent from the fluidized bed and portions thereof may desirably be re-cycled as fluidizing gas for the bed of aluminium chloride particle. Alternatively, any suitable substantially dry and non-reactive gas such as nitrogen, methane, air, carbon dioxide and/or carbon monoxide may be used to fluidize the bed. The use of markedly low ambient desublimating or condensing temperature in comparison to the solidification temperature of aluminium chloride, for an example, 30-100C as compared to 180C and the agitation inherently present in the fluidized bed of particles of aluminium chloride surprisingly results in the formation of a preferred range of size of particles as compared to that developed by desublimation at substantially higher temperature in the vicinity of the actual ambient condition solidification temperature of aluminium chloride as well as selectively contoured particles of generally tabular configuration characterised by the substantial absence of generally planar exterior surfaces. Since such configuration and range of particle sizes contribute to easy handling for subsequent electrochemical conversion of the aluminium chloride to metallic aluminium, the use of desublimation temperatures well below the upper ambient limits thereof according to the principles of this invention is highly advantageous. Thus, rapidly quenching the gaseous aluminium chloride in the fluidizing bed from a temperature of about 150-250C to below 100C and preferably to about 60C in a single stage or step, one would not have expected that readily handled and flowable particles of selective size and configuration would form.
6. Thus, by careful selection and control of the temperature of desublimation and by using a fluidized bed of aluminium chloride particles in the condensation zone, it has been found that particles of selective configuration are produced and that the particle size of the solidified aluminium chloride can be selectively controlled. At lower temperatures within the specified range of about 35-100C the average particle size of desubliment product is generally smaller than those obtained at high temperatures within such range.
'While normally the gaseous aluminium chloride containing carrier subjected to the condensation fluidized bed treatment, according to the invention will be the gaseous effluent recovered from a chlorination reaction of the foregoing type, such carrier can be effluent from a different type chlorination procedure for reaction or can be a gaseous aluminium chloride containing carrier supplied from any convenient source so long as the particular carrier is substantially free from undesired contaminants which would detract from the intended desublimation step.'
Thereafter various examples were given and the claims of the appellant in the said application for patent are as follows :
'1. Solid lobular aluminium chloride of generally curvi-linear contour compositely constituted of autogenously bonded pluralities of smaller sized particles and characterized by the substantial absence of generally planar exterior surfaces.
2. Aluminium chloride as set forth in claim 1 having an average particle size of less than about 40 mesh.
3. Aluminium chloride as set forth in claims 1 or 2, wherein said smaller sized particles are of generally spherotdate character.
4. Aluminium chloride as set forth in claims 1 to 3 further characterized by a bulk density of about 75-105 lbs/cu. ft.
5. Aluminium chloride as set forth in claims 1 to 4 having an average particle size distribution of about 40 to 350 mesh.
6. Solid particulate aluminium chloride according to claims 1 to 5 generally lobular character presenting a generally bullate surface with the particles thereof compositely constituted of agglomerated pluralities of smaller sized particles and characterized by the effective absence of fracture induced planar exterior surfaces and relatively sharp protuberant angles.
7. Aluminium chloride as set forth in claims 1 to 6, further characterized by a bulk density of about 75-105 Ibs/cu. ft.
8. Solid aluminium chloride as set forth in claims 1 to 7 of at feast 99.5% purity and having a total of less than about 0.3% and preferably less than about 0.2% by weight of non-volatile impurities including combined oxygen.'
7. Mr. Lal, appearing for the Appellant, submitted that the controller's office was wrong in refusing the application for patent under Section 15(2) of the Patents Act, 1970, as the substance for which the Appellant is seeking the patent was not produced by chemical process but by physical process. He submitted that Section 5(b) of the Patents Act, is not applicable to the present case. Mr. Lal submitted that the order of the Scientific Officer dated the 6th of August, 1977, which is at page 51 of the Paper Book (sic) (was wrong?). He submitted that the desublimation of gaseous effluent of Aluminium Chloride by which the lobular aluminium chloride with definite size and configuration is obtained is a physical process and does not involve any chemical process. Therefore, it is not hit by the said Section 5(b) of the Patents Act, 1970, and the office of the Controller was wrong and the said order should be set aside. Mr. Lal drew my attention to Thorpes' Dictionary of Applied Chemistry, 4th Edition, Vol. II at page 172 where the meaning and process of sublimation has been set out inter alia in the following words :--
'Sublimation is the distribution of a substance at a temperature below its melting point, that is, by direct volatisation of the solid without passage through the liquid state. The term is usually applied to the vaporisation of solid which possesses a sufficiently high vapour pressure to exhibit volatisation under ordinary pressure and slightly elevated temperature.'
8. He submitted that desublimation is the reverse process of sublimation, that is, from gaseous state to solid state without the intermediate liquid stage and in that process no chemical process is involved by way of the substance being dissociated or decomposed into various different elements or components, then it would not involve chemical process but only physical process. Mr. Lal also referred to Kirk-Othmer Encyclopedia of Chemical Technology, Second Revised Edition, Volume 2 at page 17 that Aluminium Chloride has been described inter alia as follows :--
'Anhydrous aluminium chloride is the most common form of the commercial material. It vaporizes at 180.1C as the dimer and decomposes to the monomer at 800C. This decomposition begins above 600C.'
9. From the said description Mr. Lal submitted that in the present process of producing the aluminium chloride in lobular form, the appellant never reaches the temperature above 180C and there is no question of the decomposition of the aluminium chloride which only takes place above 600C. Mr. Lal submitted that it is only changing shape of the aluminium chloride by physical process, that is, what is involved in the substance in which the appellant is claiming the patent under consideration. He also drew my attention to the last portion of the order of the Scientific Officer dated the 6th of August, 1977, where it has been observed as follows :--
'Claims for shaped article produced by physical method from the solid lobular aluminium chloride of the present invention would not have been obejcted to and submitted that it is conceded by the office of the Controller that shaping of the article is only a physical method and cannot be objected to.'
10. Mr. Lal submitted that is exactly what is happening in the present case, that is, from the gaseous form of aluminium chloride it is shaped into lobular form of aluminium chloride of particular shape by purely physical process and no chemical process is involved therein and therefore, the said order should be set aside.
11. Mr. N. C. Roy Chowdhury, appearing with Mr. Dipak Som, for the Respondent, submitted that the appellant in its complete specification and the examples made it quite clear that the said substance is produced by chemical process and as such, it is hit by Section 5(b) of the Patents Act, 1970. He submitted that, what the appellant is trying to do now is to eliminate the stages which involve chemical process for the production of the lobular aluminium chloride of particular shape and only relying on the physical process at the final stage of shaping. He submitted that the entire process is a continuous and single process for the manufacture of the substance for which the appellant is claiming patent and the appellant is not entitled to rely on a particular portion of the said process for the purpose of taking it out of the provisions of Section 5(b). Mr. Roy Chowdhury relied on the complete specification of the appellant wherefrom it is quite clear that the substance on which the patent is claimed by the appellant is produced by chemical process, firstly by gases and thereafter, by de-sublimation to the lobular solid form. Therefore, Mr. Roy Chowdhury submitted that the appellant is not entitled to claim patent in respect of the said substance. He further submitted after drawing my attention to Section 15(2) of the Patents Act, 1970, where it has been provided:
'If it appears to the Controller that the invention claimed in the specification is not an invention within the meaning of, or is not patentable under this Act, he shall refuse this application that the Controller has been given the statutory power to refuse any patent if it appears to him that it is not patentable under the said Act.'
12. Mr. Roy Chowdhury, therefore, submitted that the Court will not easily set aside the decision of the Controller when it is based on scientific and expert examination as in this case. He relied on a passage from J. F. Garnon Administrative Law as to the decision of an administrative authority under a statute should not be set aside if there is no patent illegality or infirmity on the face of it. Mr. Roy Chowdhury submitted that order of refusing the claim of the petitioner under Section 15(2) is based on a considered expert's decision of the Scientific Officer who has taken into account the complete specification and claim and the claim of the petitioner having regard to the nature of the substance on which the patent is claimed by the appellant and the chemical process involved in it. Mr. Roy Chowdhury, therefore, submitted that the appellant is not entitled to the patent and, therefore, the appeal should be dismissed.
13. Mr. Lal in reply submitted that in the complete specification, the examples and the process has been described as the patent if granted in favour of the applicant will be valid for 14 years from the date of the grant and thereafter, it will be available to everybody and, therefore, the complete process involved in the manufacture of the said substance must be described and in doing so the said chemical process involved in the manufacture of the substance is described from the beginning to the end and, therefore, it cannot be said that the shaping of the article by the appellant in the claim involved also includes chemical process which has taken place prior to the raw material being the aluminium chloride gaseous effluent used for processing the same into lobular aluminium chloride of particular shape by desublimation. It does not involve any chemical process but only a physical process of desublition. Therefore, Mr. Lal submitted that the specification and the examples has been given for different purposes and not for showing the process of manufacture of the substances by the appellant, that is, the lobular aluminium chloride of particular shape from gaseous form to the solid form. That only involves physical process and no chemical porcess is involved. Mr. Lal also submitted that under Section 116(2) of the Patents Act, 1970, it has been specifically provided that appeal to High Court would lie from a decision of the Controller under Section 15. Therefore, there is no substance in the contention of Mr. Roy Chowdhury that Court will not set aside the decision of the Controller under Section 15(2). Mr. Lal admitted that if there is no patent error of the decision as perverse or wrong on the face of it the said decision cannot be set aside.
14. Considering the respective contentions very carefully it appears to me that the order of the office of the Controller dated the 6th of August, 1977, is right and justified in the facts and circumstances of this case. The Scientific Officer has held inter alia as follows :--
'Solid lobular AlCl3 (i.e. with a definite size and configuration of the particles) is obtained, as can be ascertained from the specification, by desublimation of gaseous effluent of Aids prepared for example, by chlorination of alumina in a gaseous medium. This desublimation is thus an essential step for recovery of solid lobular AlCl3 which has an inherent physical characteristic when obtained by this process.
The agents argued that the AlCls with adefinite size and configuration is just like ashaped article of resin or any other high polymeric substance as the lobular AlCl3 is obtained by a physical process, namely desublimation of gaseous effluent of AlCl3.
I do not agree with the agents, solid tabular AlCl3 as such is neither comparable to a shaped article as it is a chemical substance with some characteristic features nor is desublimation which is a part of the Chemical process and is for recovery of the solid lobular AlCl3 from gaseous effluent of AlCl3 obtained by a purely chemical process namely chlorination of Alumina in a gaseous medium, a physical process. If this recovery step is to be considered as a physical process, then every chemical substance is ultimately obtained by a so-called physical step namely distillation, filtration or crystallization. Hence, desublimation which is a step in the overall chemical process cannot be considered separately. Even filtration, extraction or distillation are considered chemical process (Vide the condensed Chemical Dictionary eighth edition, revised by Essner G. Hawly, page No. 192.).
But the shaped articles obtained from resin and laminated products from plastic materials as disclosed in the above specifications were produced by purely physical methods such as moulding, pressing etc. which were not part of any chemical process for producing the basic chemical substances, e. g., resins or plastic materials. Claims for shaped articles produced by physical methods from the solid lobular AlCl3 of the present invention would not have been objected to.'
15. Carefully examining the said finding and also the complete specification in this case I have no hesitation in holding that the applicants are claiming patent regarding invention to a substance prepared or produced by chemical process. The appellant is simply eliminating the stages in the manufacturing process of the said substance which involves chemical process but only relying on the portion of desublimation in converting the gaseous effluent into solid lobular Aluminium Chloride of particular shape. In my view, the said Scientific Officer by his decision dated the 6th of August, 1970, has rightly held that the said invention is hit by Section 5(b) of the Patents Act, 1970, and not patentable. The reasoning is quite clear and based on expert opinion which does not appear to be patently wrong or against any principle of natural science. This is not a case where the Court should set aside the finding and decision of the office of the Controller of Patent when it is founded on correct appreciation of the scientific process of the manufacture of the substance on which the patent is claimed The present patent has got no similarity with those shaped article as indicated in the decision of the Scientific Officer dated the 6th of August, 1970, which I have set out before. The appellant cannot eliminate the portion of the chemical process involved and rely only on the stage of the physical process of final conversion from the gaseous state to the solid state, but the entire process has to be looked into, and admittedly that involves chemical process as indicated in the complete specification and the examples set out therein.
16. In the result, the appeal is dismissed with costs.