What is Revocation of Patent?

A patent is an exclusive and monopoly right which is granted by the patent office to the inventor or the interested party who has filed a patent application. The patent right granted can be cancelled by filling a revocation petition in India to the appellate body or to the High Court.

A grant of a patent is provided to the first and the true inventor for the creation of something new and novel for the benefit of the public. The general public is given a chance to challenge the invention on the ground that the invention is not novel and does not have an industrial or general use. 

Revocation of Patent

Revocation means cancellation or annulment of something by the respective authority. After revocation, the title and privilege of the person or institution are taken away from them.

Revocation of the patent is filed after the patent is granted, by way of a revocation petition, the rights and privilege gained after the grant of a patent is taken away from the inventor or the patent applicant.

Conditions for Revocation of Patents

The patent which is ambiguous or vague in its mode of application, and is not considered in the interest of the public is revoked by the Central Government. The notice of revocation is mentioned in the Official Gazette, along with the reasons for the same. 

Grounds of Revocation of Patent Application

There are four basic grounds through which a patent application can be revoked:

  • Surrender of Patent
  • A revocation under Section 64 of the Patents Act
  • Revocation of patent related to atomic energy
  • Revocation of a patent that is not in public interest
  • Revocation on the grounds of being 'Non-Working'

The party interested or the central government can file an application on the following grounds for revocation:

  • The claims mentioned in the complete specification do not involve a patentable subject matter
  • The person who has applied for a patent application is not entitled to claim the invention
  • The claims mentioned in the invention are not novel as they are either the part of claims mentioned in the complete specification with a priority date before the date of the application.
  • The patent granted has been obtained through a fraudulent manner or suggestion.
  • The patent granted is contrary to law.
  • If the invention lacks an inventive step
  • The information provided by the patentee regarding the invention is false

Section 64 lays down grounds for revocation under the Indian Patents Act. However, the grounds mentioned in this section is not exhaustive.

Therefore, Section 65, 66 and 85 are also used for defining the grounds for revocation proceedings.

Proceedings for revocation of the patent can be initiated through three methods: By the central government, through infringement proceedings filed in the court, and through the Controller of the Patents and Trademark.

Mode of Patent Revocation

1. Central Government

Central government directs the Controller to revoke the patent if the subject matter of the patent falls under Section 65 of the Indian Patents Act.

  • If the patent is related to atomic energy the Central Government can revoke the patent application as per the Atomic Energy Act.
  • Additionally, if they consider that the manner in which patent is exercised is prejudicial to the public, they can revoke the patent application. 

High Court

Revocation proceedings in high court can be initiated through counterclaims in an infringement suit.

Controller

  • If an application of modification in the main patent has been filed with the Patent Office, then, in such case the Controller may grant a patent for the addition and revoke the main patent application
  • If the applicant of the patent file for the surrender of the patent the Controller has the power to revoke the patent.
  • If the compulsory license has been granted for a patent to the applicant and if the Controller receives the application on behalf of the patentee stating that the invention doesn't meet the requirement of the public.

Exhaustive Nature of Revocation Provisions

Revocation provision under Section 64 of the patent law is not exhaustive. As mentioned earlier, Section 65, 66 and 85 are also used for defining the grounds for revocation proceedings. Additionally, Section 25(2) defines Pre-Grant Opposition. 

Supreme Court in its recent judgment has laid down that the applicant who files post-grant opposition exhausts his opportunity to file revocation proceeding against the same patent.

Surrender of Patent and Revocation Proceedings

Surrender of the patent under the Indian Patents Act is only possible if the applicant has no infringement or revocation proceedings against the invention going on. The said ground has been laid down under Section 63 of Indian Patents Act.

Example of Revocation Proceedings

A patent can be revoked by filing patent revocation application by any person interested or by the Central Government itself.

Revocation of Hindustan Unilever Limited's Patent

Keeping germs in the water is not enough to prevent the patent from being revoked in the case of Pureit Patent for Hindustan Unilever(HUL).

The Intellectual Property Appellate Board (IPAB) on June 2012 revoked the patent granted for the product Pureit. The application was forwarded by Tata chemicals Ltd. to the patent authorities. In totality, the patent for the product was cancelled on many grounds, but the main ground of rejection involved non-complying with Section 8 of the Patents Act.

The grounds of revocation are:

  1. Anticipation and Obviousness
  2. Non-Compliance with Section 8

Revocation of Jamun Patent

Patent granted for diabetic medicine derived from the extract of Jamun, Chundun, and Lavangpatti was granted by the Patent Office. The Revocation of the patent was on the ground that the patent application was against the public interest. The following proceeding quashed the right of exclusive use of medicine for drug maker Avesthagen.

The Govt. stated that the patent right granted was against the interest of the State, and was generally prejudicial to the public, and hence, was erroneously granted.

Revocation of JCB Patent

 

JC Bambford (JCB) Excavators Ltd., a UK based company dealt with earth moving equipment. The company's Indian patent was challenged by a Chinese manufacturer GuangXi Liugong Machinery. JCB had failed to disclose to the authorities under section 8 about the national filing in other countries, which is mandatory.

The Deputy Controller of Patent and Designs revoked the patent of the Company since they failed to disclose their Australian Patent filed in 2011. This falls under non-compliance under Section 8. 


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