With the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 2005, Section 25 of the Indian Patents Act, 1970 was amended to include the ability to oppose patents before and after they are granted. This ensures proper appropriation of intellectual property and internationally harmonizes the patent regime. Patents are revoked in cases of infringement or claims by licensors, or if it is deemed as against public policy by the Central Government, as the exclusive financial rights that come with it aren’t absolute, and can be done so at any point during the lifetime of the patent.
Who can Initiate?
Generally, the Central Government, one who makes a counter-claim in a suit for infringement and any person who has a direct, tangible and commercial interest who has been injured or affected by the continuance of the patent on the register or by its use (“Person Interested”) have the right to initiate revocation proceedings.
Jurisdiction and Multiplicity of Suits
Section 104 states that only the Intellectual Property Appellate Board 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. vs. 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 inexhaustive 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 the 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 is not patentable or doesn’t amount to invention
4. The scope of patent specifications 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.
Beyond Section 64
Section 65 allows patent revocation if it is pertaining to the safety, production, control, use, treatment or disposal of atomic energy or a radioactive substance governed by the Atomic Energy Act, 1962 while Section 66 deals with a patent that in inherently or has been exercised in a mischievous or prejudicial manner causing harm to the State and the public. To prevent a patent from re-validating workable traditional knowledge, the Central Government revoked the patent in the case of Avesthagen Ltd. which had patented “A synergistic ayurvedic/functional food bioactive composition (Cincata) and a process of preparation thereof” that involved Jamun, Lavangpatti and Chandan to treat diabetes.
Section 85 deals with compulsory licenses of patents that haven’t been worked in India or have not been made affordable for the general public or lack reasonable requirements of the public within a two-year time-frame. If one who has been given such a right isn’t in a position or is unwilling to take advantage of it, it is only fair that someone else be allowed to exploit it.
After giving an opportunity to the patentee to be heard, the relevant authority may make such declaration in the Official Gazette that the patent stands revoked. The owner of a patent must never be under the impression that once it has been granted, the said piece of intellectual property can be utilized according to his whims and fancies. Since it was granted to forward greater good in the first place and there are situations when new information comes to light, a provision to revoke patents once granted is a key procedure in the protection of intellectual property rights.
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