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Patent Revocation

Patent Revocation

Section 104 of the Patents Act, 1970 states that only the Intellectual Property Appellate Board (IPAB) or the High Court can be approached for revocation as no suit of infringement can be brought before a court inferior to the District Court having jurisdiction.

Moreover, to prevent the wastage of judicial machinery, it was laid down by the Supreme Court in the Enercon (India) Ltd and Ors. v. Enercon Gmbh, that post grant opposition proceedings and petitions or counter-claims of revocation against the same patent, cannot be simultaneously instituted. Frivolous litigation shouldn’t be encouraged as it is viewed as a tool for cash-rich litigants with dishonest interests.

Section 64: Grounds for Revocation

Principally, Section 64 contains in-exhaustive grounds that dictate the conditions that warrant the revocation of patents:

  1. Invention is obvious, lacks an inventive step or utility
  2. Invention isn’t new and, has been publicly used or published in India before the priority date or it is foreseen in light of the knowledge available within any local or native community in India or elsewhere.
  3. Either the party wasn’t entitled to the patent, or the subject isn’t patentable or doesn’t amount to invention
  4. The scope of patent specification is incomplete or the specifications have either been already claimed in a patent that is granted
  5. The patent was wrongfully obtained in violation of another party’s rights, such as through incorrect or false representation, or leave to modify specifications was obtained through fraudulent means
  6. The information that has been disclosed under Section 8 is known to be false by the Applicant or he has been unable to furnish the required details
  7. Complete specification omits or erroneously attributes geographical origin or biological matter used in the invention
  8. The invention was either secretly used before the date or claim or the Applicant contravened secrecy instructions under Section 35
  9. The complete specification neither describes the invention and method sufficiently nor does it disclose the best method of performing it which was known and entitled protection.

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