Legal Guide

What are the Provisions Relating to the Revocation of Patents?

by Digant Sharma · 3 min read

provisions relating to revocation of patents

Introduction

A patent protects the inventor from unlawful use of the new product or new technology that is the main subject of the Patent. The Patent must be novel to the rest of the world. Patents are revoked when they are found to be against the Central Government’s public policy or when there is patent infringement or claim by Licensors. Let us look into provisions relating to the revocation of patents in India.

What Is Patent Revocation?

When a patent is sealed or awarded, it is not always the case that the Patent will be unimpeded by any person or third party throughout the duration of the Patent’s existence. Certain individuals may question the Patent for a variety of reasons, and the Patent may be contested through the Revocation of the Patent.

The Patent Act does not presuppose that the granted Patents are legitimate; the rights conferred on such issued Patents cannot be absolute. Third parties that are obliged to obtain permission from the Patentee of the granted Patent before exercising any exclusive rights granted upon him/her are also given the ability to contest the patent’s validity. Get Online Advice.

Provisions Relating to the revocation of patents

Section 64 of the Patent Act 1970 does not limit the reasons for patent revocation to simply those specified in Section 64, but Section 25 (2), which includes specified grounds for post-grant opposition actions, is limiting in character. As a result, Section 64 cannot be considered to be exhaustive.

Who Can File for Patent Petition Revocation?

Section 64 of the Patent Act of 1970 specifies who can file a petition for patent revocation. The individuals are as follows:

  1. Any interested party;
  2. Any interested party;
  3. the Central Government;
  4. the person is bringing a counter-claim for patent infringement in a patent dispute.

Where Can I File for a Patent Revocation?

Any of the people listed in Section 64 of the Patent Act of 1970 may submit a petition for patent revocation with the Intellectual Property Appellate Board (IAPB). Section 104 of the Patent Act of 1970 addresses the issue of jurisdiction when filing a Revocation of the Patent petition.

Section 104 specifies that a patent revocation petition alleging patent infringement shall not be filed in any court lower than the District Court with the authority to hear the infringement matter. In contrast, if the defendant files a counter-claim for patent revocation, the counter-claim or litigation for patent infringement shall be moved to the High Court. Get a Legal Consultation now.

Section 64-Grounds for Revocation of Patent

Section 64 primarily covers exhaustive justifications that determine the situations that cause patent revocation:

  1. The invention is apparent and does not include an innovative step or usefulness.
  2. The invention is not novel and has been widely utilised or published in India prior to the priority date. Or it is predicted based on the information available in any local or indigenous society in India or abroad.
  3. Either the party did not have the right to the Patent, or the topic is not patentable or does not constitute an invention.
  4. The patent specifications’ breadth is insufficient, or the specifications have previously been claimed in a patent awarded.
  5. The Applicant secured a patent infringing on the rights of another party. For example, by erroneous or deceptive representation or leave to amend specifications gained fraudulently.
  6. The Applicant knows the information supplied in Section 8 is inaccurate or he is unable to provide the essential facts.
  7. The whole specification omits or incorrectly relates the invention’s geographical origin or biological substance.
  8. The invention either was surreptitiously employed prior to the date of claim, or the Applicant violated Section 35 secrecy requirements.
  9. The whole specification neither adequately defines the invention and technique nor discloses the optimal way of doing it that is recognized and eligible for protection.

Patent revocation is not limited to Section 64 alone. Section 25(2)16 also specifies certain grounds that could be used for post-grant opposition, which essentially means that a person claiming that a patent granted under the Act is not valid on the basis of the grounds mentioned in Section 25 and could approach the controller for revocation by way of opposition to the grant of such Patent could reach the controller for revocation. This remedy is accessible for one year from the date of patent award publication.

Section 65-Revocation in Atomic Energy-Related Cases

Section 65 of the Patent Act of 1970 states that the Central Government may revoke a patent. The Central Government may cancel a Patent only after determining that the invention mentioned in the Patent is relevant to Atomic Energy. The Atomic Energy Act of 1962 limits the award of a patent for an innovation using atomic energy. As a result, the Central Government cannot award a patent in India for an innovation linked to atomic energy.

Section 66-Patent revocation in the public interest.

The law does not allow someone to be selfish; for example, if something you find is highly helpful to you but harms the public at large, or the method by which it is prepared is harmful to the public at large, the law will not allow you to continue with your discovery.

Section 85-Controller Revocation for Non-Working Patent

The Patent can be canceled for non-working under Section 85 of the Patents Act of 1970. Any interested party or the government may request the Controller for the revocation of a patent for which a compulsory license has been issued. The Patent Revocation shall be filed within two years after the obligatory license is granted.

The following are the grounds/ provisions relating to the revocation of the Patent:

  1. The patented innovation is not being used on Indian territory;
  2. the reasonable needs of the general public from the Patent are not being satisfied;
  3. The patented invention is not being made available to the general public at a reasonable, affordable price.

Conclusion

Several of the reasons for patent revocation need extensive legal and practical analysis for different types of Patent Applications (within the field of the invention defined in the Patent). In the end, the Court will decide whether or not a Patent is liable for Revocation based on the facts given by the parties. If you believe there are adequate provisions relating to the revocation of patents.

A granted Patent is not absolute. Certain individuals may question the Patent for a variety of reasons, and revocation of the Patent can be done. To know more about this, consult an expert now.

Digant Sharma

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Digant Sharma

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