What is revocation of a patent – Patent Registration in Coimbatore
This article specializes in the revocation complaints which is one of the mechanisms to be had for annulations of Patents in India.
What is revocation of a patent?
When a patent has been sealed or granted, it isn’t always the case that the patent shall live unhindered by way of any 1/3 party till the existence of the patent. The patent registration can be challenged by using certain humans on different grounds, and a technique to reason the same is through filing a revocation petition/ post-grant competition complaints. This article focuses on the revocation lawsuits.
Why does one document a revocation petition?
As the Patent Act does no longer presume Patents granted to be valid, rights granted on such Patents can’t be absolute. Third parties which might be required to are seeking permission from Patentee for training any of the distinct rights bestowed upon him are also given a hazard to task the validity of the Patent registrations. This undertaking may be instituted on own in addition to on Patentee asserting infringement of Patent rights.
Who can report a revocation petition?
As per Section sixty four of the Patent Act, 1970, the following individuals can record the petition inside the High Court:
• any person interested1;
• the Central Government
• the individual making the counter-claim in a healthy for the infringement of a patent registration.
Where can a revocation petition be filed?
Thus, a revocation petition may be filed in the Intellectual Property Appellate Board by way of the interested person or the Central Government, or it is able to be filed as a counter-claim in a healthy for infringement on the High Court.
To bring inside the element about jurisdiction of suits of infringement and the corresponding revocation petitions, Section 104 of the Patents Act, 1970 states that no fit of infringement can be introduced earlier than a court docket inferior to the District Court having jurisdiction to strive the healthy and in the occasion of a counter-declare for revocation of the patent registration made via the defendant, such match for infringement and the said counter-claim have to be transferred to the High Court.
What are the grounds underneath which a revocation petition can be added?
Under Section 64, the following are the said grounds:
1. the invention, to date as claimed in any claim of the whole specification, was claimed in a valid declare of in advance priority date contained in the whole specification of every other patent granted in India;
2. The patent registration was granted at the utility of someone no longer entitled to use therefor;
3. The patent was acquired wrongfully in contravention of the rights or the petitioner or any individual beneath or thru whom he claims;
4. The situation of any declare of the entire specification isn’t always an invention;
5. the invention to date as claimed in any declare of the entire specification is not new, having regard to what was publicly recognised to publicly used in India before the concern date of the declare or to what become published in India or elsewhere in any of the files mentioned in Section 13;
6. the discovery thus far as claimed in any declare of the whole specification is obvious or does now not involve any ingenious step, having regard to what became publicly recognised or publicly utilized in India or what become published in India or somewhere else before the concern date of the claim;
7. the invention, up to now as claimed in any claim of the whole specification, isn’t useful;
8. The entire specification does now not sufficiently and fairly describe the discovery and the technique through which it is to be performed, that is to say, that the description of the technique or the instructions for the working of the invention as contained in the entire specification aren’t by way of themselves enough to enable someone in India possessing common talent in, and common know-how of the artwork to which the invention relates, to work the invention, or that it does not disclose the fine approach of acting it which became recognized to the applicant for the patent registration and for which he was entitled to claim protection;
9. That the scope of any declare of the whole specification isn’t sufficiently and without a doubt described or that any declare of the whole specification isn’t always fairly based totally on the problem disclosed within the specification;
10. That the patent registration become obtained on a fake thought or representation;
11. That the concern of any declare of the whole specification is not patentable underneath this Act;
12. That the discovery to this point as claimed in any claim of the complete specification became secretly used in India, in any other case than as cited in sub-phase (3), before the priority date of the claim;
13. That the applicant for the patent has failed to disclose to the Controller the data required through phase eight or has furnished facts which in any cloth precise was fake to his information;
14. That the applicant contravened any direction for secrecy passed beneath segment 35
15. That go away to amend the entire specification below section fifty seven or segment 58 became received by means of fraud.
16. That the entire specification does not divulge or wrongly mentions the source or geographical origin of biological cloth used for the discovery;
17. That the invention so far as claimed in any claim of the complete specification changed into predicted having regard to the expertise, oral or otherwise, to be had within any neighborhood or indigenous network in India or someplace else.
Does revocation restrict itself to Section 64?
It is important to word that segment sixty four does not restrict grounds for use in revocation to most effective those supplied in section 64 whereas section 25 (2) commencing grounds utilized in post-grant competition lawsuits is restrictive in nature.
What are the other provisions concerning revocation?
Under Section 65, if a patent is claimed to be associated with atomic energy, a revocation petition can be filed in opposition to it. Such patent shall not be granted beneath the Atomic Energy Act, 1962 and will be revoked. Under Section 66, if the Central Government is of the opinion that a patent or the mode in which it is exercised was mischievous to the State or prejudicial to the public, after giving an opportunity to the patentee to be heard, it could make such declaration inside the Official Gazette and the patent registration shall stand revoked.
Moreover, it was laid down by the Supreme Court that when post grant opposition proceedings are instituted by a party, he cannot institute a revocation petition or counter-claim of revocation proceeding against the same patent.
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