According to the Merriam-Webster dictionary, the term ‘revoke’ means to annul something by recalling or taking it back. Simply put “Revocation” means cancellation of something (for example a status, an act, a position, a direction, etc) that was initially conferred by virtue of its authenticity. With respect to patents, revocation means annulling the patent rights granted to the patentee.
Rights conferred on a Patentee
The Indian Patents Act, 1970 confers certain rights on the patentee upon grant of the patent. Section 48 of the Act provides that in case of a product patent, the patentee has the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India. Moreover, in case of a process patent, the patentee has the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.
However, when the patent is sealed and/or granted, it can be thwarted throughout its life. The patent can be challenged on several grounds of revocation provided under Section 64 of the Act. As the Act does not assume that the patent granted to the patentee to be valid, the rights granted on such granted patents cannot be absolute.
Importance of provisions relating to revocation of patents
The opposition mechanisms and/or revocation proceedings are of quintessential importance to make sure that undeserving patents are not granted in contravention of the provisions of the Act and if even if any such patent is granted, it can be opposed and/or revoked. As the Act does not presume patents granted to the patentee to be valid, rights granted on such patents cannot be absolute. Also, parties requiring permission (consent) from the patentee for practicing any of the exclusive rights bestowed upon them are provided with a chance to challenge the validity of the patent.
Initiating revocation proceedings
Section 64 of the Act provides that any interested person, the Central Government and/or a party making the counterclaim for infringement of a patent in a suit can file and initiate the revocation proceedings. Moreover, Section 2(1)(t) states that “person interested” includes a person engaged in, or in promoting, research in the same field as that to which the invention relates.
Further, the revocation petition can be filed at the High Court. Importantly, Section 104 of the Act states that no suit of infringement can be brought before a court inferior to the District Court having jurisdiction to try the suit and in the event of a counterclaim for revocation of the patent made by the defendant. Such a suit for infringement and the counterclaim must be transferred to the High Court.
Grounds for revocation