India: Revocation Of Patent In India

Last Updated: 26 August 2019
Article by Vijay Pal Dalmia, Partner

By Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com  Mobile No.: +91 9810081079
Linkedin: https://www.linkedin.com/in/vpdalmia/
Facebook: https://www.facebook.com/vpdalmia   Twitter: @vpdalmia
And Udit Tewari
Vivekananda Institute of Professional Studies, Email: udittewari25@gmail.com

A patent provides the inventor with the protection against the unauthorized use of the new product or the new technology which is the subject matter of the Patent. The Patent must be new to the rest of the world, meaning that it is not published, used, and not known to any person working in that particular field. This protection for granted patent is for a limited period.

Understanding the Relevant terms:

Grant of Patent-

Once a patent is GRANTED (Registered), it provides protection and monopoly to the owner of the patent against the unauthorized making, using or selling of the invention. This protection is provided for a limited period which is 20 years from the date of application.

Inventive Step-

An invention which involves the functioning of a technological advancement which is not among the well-known or already existing knowledge in the respected field by the person of art or possesses an economic significance or both. This particular feature of an invention is known as the inventive step1.

Invention-

The invention refers to a new product or a process which involves an inventive step capable of having industrial application2.

New invention-

The new invention covers any invention or any advancement in the field of technology which is not already published or used in any other country or anywhere else in the world for that matter before the date of filing of the patent3.

What are the Non-Patentable Inventions?

Section 34 of the Act deals with those inventions which are not considered valid inventions under the Act. These kind of inventions are those inventions which are:

  • Frivolous and contrary to well established natural laws
  • Those inventions whose intended use or the commercial exploitation of which could be against public morality or might be harmful to human, animal, plants, or the environment in general.
  • Discovery of a scientific principle or any living thing or non-living substance in nature
  • The mere discovery of:
    • A new form of a known substance and which does not result in increased efficiency in any way of that substance.5
    • New property or use of a known substance.6
    • Mere use of a known process, machine, or apparatus7.
  • A method of agriculture or horticulture etc.
  • Section 4 of the Act provides that the patent of an invention dealing with atomic energy shall not be granted. Hence, no invention relating to atomic energy can be patented.

Under the (Indian) Patents Act, 1970 the validity of a patent can be challenged in any of the following ways:-

  • Opposition within one year from the date of publication of grant [Section 25(2)8]
  • Revocation petition filed with the Appellate Board (IPAB) [Section 649]
  • Filing of a counterclaim in a Patent infringement suit [Section 64]
  • Revocation of a patent due to non-workability [Section 8510]
  • Revocation of a patent in Public interest by Central Government [Section 6611]
  • In cases relating to atomic energy on the directions of the Central Government [Section 6512]

Revocation instituted by any (Interested) Person-

Section 6413 of the Patents Act provides that a person interested14 can file a petition before the IPAB, or in a counter-claim in a suit for infringement of the Patent before the High Court, on any of the grounds mentioned in this Section. The person under the Act refers to an interested person. It means that the person filing for revocation of the patent shall have some interest or share in the patent or its revocation, whatever the case may be.

The grounds for revocation of a patent under Section 64 of the Patents Act 1970 are as under:

  1. that the invention, so far as claimed in any claim of the complete specification, was claimed in a valid claim of earlier priority date contained in the complete specification of another patent granted in India;
  2. that the patent was granted on the application of a person not entitled under the provisions of this Act to apply therefor:
  3. that the patent was obtained wrongfully in contravention of the rights of the petitioner or any person under or through whom he claims;
  4. that the subject of any claim of the complete specification is not an invention within the meaning of this Act;
  5. that the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the priority date of the claim or to what was published in India or elsewhere in any of the documents referred to in section 1315;
  6. that the invention so far as claimed in any claim of the complete specification is

    1. obvious or
    2. does not involve any inventive step,
    having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of the claim;
  7. that the invention, so far as claimed in any claim of the complete specification, is not useful;
  8. that the complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed, that is to say, that the description of the method or the instructions for the working of the invention as contained in the complete specification are not by themselves sufficient to enable a person in India possessing average skill in, and average knowledge of, the art to which the invention relates, to work the invention, or that it does not disclose the best method of performing it which was known to the applicant for the patent and for which he was entitled to claim protection;
  9. that the scope of any claim of the complete specification is not sufficiently and clearly defined or that any claim of the complete specification is not fairly based on the matter disclosed in the specification;
  10. that the patent was obtained on a false suggestion or representation;
  11. that the subject of any claim of the complete specification is not patentable under this Act;
  12. that the invention so far as claimed in any claim of the complete specification was secretly used in India, otherwise than as mentioned in sub-section (3), before the priority date of the claim;
  13. that the applicant for the patent has failed to disclose to the Controller the information required by section 8 or has furnished information which in any material particular was false to his knowledge;
  14. that the applicant contravened any direction for secrecy passed under section 35 or made or caused to be made an application for the grant of a patent outside India in contravention of section 39;
  15. that leave to amend the complete specification under section 57 or section 58 was obtained by fraud;
  16. that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention;
  17. that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.

The revocation of a patent is not restricted to Section 64 only. Section 25(2)16 also specifies certain grounds, which 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 grounds mentioned under Section 25 and could reach the controller for revocation by way of an opposition to the grant of such patent. This remedy is available until one year from the date of publication of the grant of patent. These grounds are somewhat similar to those of Section 64.

Patent opposition, Revocation of patent, Counterclaim & Res-judicata

A patent, post grant, can be opposed under Section 2517 of the Act on the grounds mentioned thereunder, as well as a petition for revocation of patent or a counterclaim18 in a suit for infringement can be filed under Section 64 of the Act. An interested person can file a petition for revocation to IPAB and simultaneously file a defense of "counterclaim" on a patent in the High Court. In such a scenario an important question arises i.e., what would happen in these kinds of circumstances? It is possible that the decisions in opposition, revocation petition and counterclaim can be contradictory. The Hon'ble Supreme Court has answered all such question in Aloys Wobben and Ors Vs. Yogesh Mehra and Ors19.

In the above case, many questions relating to revocation proceedings filed simultaneously under different Sections of the Act were answered. In this case it was pointed out that in case an opposition is filed under Section 25 of the Patent Act, then the interested person automatically eclipses his right under Section 64, to file a revocation petition before the Appellate Board or a Counter Claim in a patent infringement suit High Court. The rationale behind such decision was given by the court by holding that the provision mentions that "Subject to the provisions contained in this Act," which means that Section 64 would function keeping in mind conditions mentioned in other Sections. In a case where opposition has been filed before the controller, that would mean that the right of the interested person under Section 64 is foregone.

Relevant extracts from the judgment:

"

  1. If any proceedings have been initiated by "any person interested", Under Section 25(2) of the Patents Act, the same will eclipse the right of the same person to file a "revocation petition" under Section 64(1) of the Patents Act,1970 and also, to invoke the right granted under Section 64(1) of the Patents Act, to file a "counter-claim" (in response to an "infringement suit", to seek the revocation of a patent). This, in our view, would be the natural effect of the words, "Subject to the provisions contained in this Act.....", appearing at the beginning of Section 64(1) of the Patents Act. And if, the above meaning is not to be assigned to the words "Subject to the provisions of this Act.....", they would be redundant and superfluous. It is, however, not necessary to pay a serious thought to the situation referred to above. The above situation, in our considered view, is unlikely to ever arise. This is because, Section 25 of the Patents Act, inter alia, provides for the procedure, for the grant of a patent. The procedure commences with the filing of an application. The second step contemplates publication of the details of the patent sought. The next step envisages the filing of representations by way of opposition (to the grant of the patent). This advances into a determination by the "Controller," to grant or refuse the patent. The decision of the "Controller," leads to the publication of the grant (of the patent). This process finalizes the decision of the grant of the patent. All the same, it does not finally crystalize, the right of the patent holder. After the grant is published, "any person interested," can issue a notice of opposition, within one year of the date of publication of the grant of a patent. If and when, challenges raised to the grant of a patent are disposed of favorably, to the advantage of the patent holder, the right to hold the patent can then and then alone, be stated to have crystallized. Likewise, if no notice of opposition is preferred, within one year of the date of publication of the grant of a patent, the grant would be deemed to have crystallized. Thus, only the culmination of procedure contemplated Under Section 25(2) of the Patents Act, bestows the final approval to the patent. Therefore, it is unlikely and quite impossible, that an "infringement suit" would be filed, while the proceedings Under Section 25(2) are pending, or within a year of the date of publication of the grant of a patent.

"

The Hon'ble Supreme Court has also shed some light on the scenario where an interested person has filed a petition for revocation with the Appellate Board, as well as took a counterclaim as a defense in a suit filed against him for "infringement" simultaneously. The Court held that whichever remedy is sought prior to the other will be valid, to be pursued and the other will be eclipsed by reason of res-judicata. The question about the validity of the patent could be decided in the suit for infringement through a counterclaim as well as in a petition for revocation with the IPAB. The court pointed out that, deciding upon the same statute under two different suites would not be permitted. Hence, if a petition is filed for revocation with the IPAB, prior to a counterclaim filed under Section 64, the Hon'ble Supreme Court clarified that in such a case the petitioner would not be permitted to file for a counterclaim under Section 64. Visa-Versa will be the case if a counterclaim was filed before the revocation petition.

Relevant extracts from the judgment20:

"

  1. A "counter-claim" for all intents and purposes, must be understood as a suit, filed by one who is impleaded as a Defendant. A "counter-claim" is essentially filed to obstruct the claim raised in a suit. A "counter-claim" is tried jointly, with the suit filed by the Plaintiff, and has the same effect as a cross-suit. Therefore, for all intents and purposes, a "counter-claim" is treated as a plaint and is governed by the rules applicable to plaints. The court trying a suit, as well as, the "counter-claim", has to pronounce its judgment on the prayer(s) made in the suit, and also, those made in the "counter-claim." Since a "counter-claim" is of the nature of an independent suit, a "counter-claim" cannot be allowed to proceed, where the Defendant has already instituted a suit against the Plaintiff, on the same cause of action. The above conclusion is drawn on the basis of the accepted principle of law crystallized in Section 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as, the Code of Civil Procedure) read with Section 151 of the Code of Civil Procedure. Both the above provisions are being extracted hereunder:

Section 10 of the Civil Procedure Code 1908- Stay of suit-

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim to litigate under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

However, the pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

Further nothing in the Patents Act shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Therefore, where an issue is already pending adjudication between the same parties, in a court having jurisdiction to adjudicate upon the same, a subsequently instituted suit on the same issue between the same parties, cannot be allowed to proceed. A similar question arises for consideration before this Court, in the present controversy. If the Respondents in their capacity as "any person interested," had filed a "revocation petition" before the institution of an "infringement suit," they cannot be permitted to file a "counter-claim" on the same cause of action. The natural conclusion in the above situation would be, the validity of the grant of the patent would have to be determined in the "revocation petition." Therefore, in the above situation, while the "revocation petition" will have to be permitted to be pursued, the "counter-claim" cannot be permitted to be continued. Therefore, in the above eventuality, it is apparent that the situation would be resolved, in the same manner, as it would have been resolved in cross-suits filed by the rival parties, before different jurisdictional courts. In our considered view, the above conclusion is imperative for a harmonious interpretation of the relevant provisions of the Patents Act.

  1. In cases where the "infringement suit(s)" was/were filed by the Appellant herein (as Plaintiff in the "infringement suit"), before the "revocation petition(s)" was/were filed by the Respondents (as Defendants in the "infringement suit"), the Respondents had the right to file "counter-claim(s)" to seek revocation of the patent, under the strength and authority emerging from Section 64(1) of the Patents Act. Having once filed a "counter-claim", in response to the "infringement suit(s)", on the same analogy as has been recorded above, it would not be open to the Respondents herein (the Defendants in the "infringement suits") to file "revocation petition(s)", as they would likewise be barred by the rule of res judicata. As such, "revocation petitions" filed later in point of time, then the institution of the "infringement suit," would be unsustainable in law. In such cases, the prayer for revocation of the patent shall be adjudicated, while disposing of the "counter-claim" filed by the Respondents. Therefore, in the above situation, while the "counter-claim" will have to be permitted to be pursued, the "revocation petition" cannot be permitted to be continued.

"

Revocation of a patent after the grant of compulsory license, & non-working- Section 8521

Section 85 of the Act lays out the conditions and the essentials, which are to be met, before the application for revocation of a patent pertaining to which compulsory license has been granted in the past is to be filed.

Compulsory license22

Compulsory license is the license which could only be granted after the expiration of 3 years from the date of grant of a patent by the controller.

In response to an application filed by an interested person, an interested person along with the application for grant of a compulsory license should also state the particulars mentioning what is 'his' interest that is connected with the grant of such license.

There are three grounds that are mentioned under Section 8423 providing that if any of the following three requirements are not fulfilled, an application for grant of compulsory license could be filed:

  • A patented invention does not satisfy the reasonable requirements of the public.
  • A patented invention is not available to the public at a reasonably affordable price.  
  • A patented invention is not working in the territory of India. Demotivating

If the controller is satisfied that any of these three requirements are not satisfied and if the controller thinks fit, he may grant a license upon such terms as he may deem fit. The controller also has to take into account other relevant factors like the ability of the applicant to exploit the licensed patent, the nature of such invention, whether the applicant tried to get a license from the patent holder, etc. Section 84(7)24 mentions the circumstances, which are to be looked at while deciding whether the reasonable requirements pertaining to the public at large are satisfied or not. 

The basic purpose of a compulsory license is to enable the general public to avail the benefits, which is due to the patent holder's inefficient use of the invention could not be availed otherwise. Hence, an interested person with adequate capabilities may be granted with a compulsory license which will eventually not only function in the territory of India but will also help in satisfying the basic requirements of the general public at reasonably affordable prices.

Role of Section 85 in revocation of a patent instituted by a person

Revocation of a patent for which already a compulsory license has been granted is covered under Section 85 of the Patents Act. Only after a period of 2 years, an application for revocation for such a patent can be filed. The grounds for revocation of a patent under Section 8525 are the same as those mentioned under Section 84,26 which deals with

  • reasonable price,
  • availability in the territory of India, and
  • requirements of the public.

Likewise, under Section 85 the applicant needs to mention the particulars clearly stating out the facts on which such application is based along with the nature of applicant's interest, in revocation of that patent. The application has to be decided within 1 year of it being presented to the controller.

The purpose behind "revocation of a patent" under Section 85 of the Act is the benefit and welfare of the public in all situations. If the patentee does not take necessary steps that might help in establishing better distribution of the product to the general public and easy availability at reasonable prices after compulsory license is granted against that patent then, it is considered that it is for the betterment of the society that the concerned patent should be revoked.

Revocation instituted by Central Government

Central Government, compared to an interested person, has more option when it comes to revocation of a patent. Not only Central Government like any other person con file for revocation of a patent under Section 64 under the grounds mentioned above but there are other Sections in addition to Section 64, which deal with the revocation of patent instituted by the Central Government.

Section 6527- This Section under the Patent Act, 1970 deals with revocation of a patent by a direction given by Central Government to the controller for patent revocation on the ground that the patent pertains to the field of atomic energy which is non-patentable invention under Section 3 of the Act. The patent is revoked after an opportunity is given to the patentee of being heard.

Section 6628- This Section under the Act deals with revocation of a patent by way of declaration in the official gazette. If the Central Government is of the view that the patented invention is

  • prejudicial to public, or
  • mischievous to state,

then it can revoke the concerned patent by way of the official gazette.

Role of Section 85 in revocation of a patent instituted by Central Government

A patent can be revoked for non-working by Central Government also under Section 85. The revocation will be on the same three grounds mentioned in Section 85, which are to be established by an individual in his application for revocation.

Footnotes

1. Section 2(h)(ja) The Patents Act 1970

2. Section 2(h)(j) The Patents Act 1970

3. Section 2(l) The Patents Act 1970

4. http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf

5. http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/693751/1/OS1-04-09-12-2011.PDF

6. 2014-2-LW874, MIPR2014(2)57

7. AIR1983Delhi496, 1983(3)PTC 245(Del)

8. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps25.html

9. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps64.html

10. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps85.html

11. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps66.html

12. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps65.html

13. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps64.html

14. Section 2(t) of the Patents Act, 1970

15. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps13.html

16. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps25.html

17. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps25.html

18. AIR2017Mad144, (2017)2MLJ571, 2017(70)PTC 577(Mad)

19. C.A. No.-006718-006718 - 2013 https://www.sci.gov.in/judgments#

20. C.A. No.-006718-006718 - 2013 https://www.sci.gov.in/judgments#

21. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps85.html

22. Section 53 of The Patents Act 1970

23. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps84.html

24. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps87.html

25. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps85.html

26. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps84.html

27. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps65.html

28. http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps66.html

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