A patent is a territorial right which excludes others from making, using, selling or manufacturing. A patent get published after eighteen months from the filing or priority date.
Any person can file an opposition within six months from the patent publication based on the prescribed grounds which is called pre-grant opposition. After patent is granted, within a year a person interested can file opposition based on prescribed grounds called post grant opposition. If a person has missed these two chances, he has other option to challenge a patent at any time of patent by revocation of patents under section 64 Indian patent Act.
Patent can be revoked anytime during the life of patent by any person interested. Revocation of patents may be brought up in two ways.
1. One is the Intellectual Property Appellate Board where a revocation petition can be filed by any person interested or by the Central government.
2. Another forum is High Court where revocation of patent is argued as a counter-claim in a suit for infringement of a patent.
A notice of any petition for the revocation of a patent under Section 64 must be served to all persons appearing on the register as proprietors of the patent or to have shares or interests therein and it is not necessary to serve notice on any other person.
Revocation of patents can be brought on following grounds:
1. The invention as claimed through the claims in complete specification was claimed earlier through a valid claim contained in complete specification of another patent granted and having earlier priority date.
2. The patent was granted on the application of a person not entitled to apply under the provisions of the Patents Act, 1970.
3. The patent was obtained wrongfully i.e. in contravention of the rights of the petitioner or any person under or through whom he claims.
4. The subject-matter of any claim of the complete specification is not an invention within the meaning of the Patents Act.
5. The invention claimed through any claim of the complete specification is not new having regard to anticipation by previous publication and by prior claim as referred to in Section 13.
6. The invention claimed through claims in the complete specification is obvious or does not involve any inventive step having regard to what was publicly known or used in India OR what was published in India or elsewhere before the priority date of the claim.
7. The invention as claimed is not useful.
8. The complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed. The description of the method or the instructions for the working of the invention is not themselves sufficient to enable a person ordinarily skilled in the art to work the invention and also the complete specification does not disclose the best method of performing the invention which is known to the applicant and for which he was entitled to claim protection.
9. The scope of any claim of the complete specification is not sufficiently and clearly defined or the claim is not fairly based on the matter disclosed in the specification.
10. The patent was obtained on a false suggestion or representation.
11. The subject of any claim of the complete specification is not patentable under the Patents Act, 1970.
12. The invention was secretly used in India before the priority date of the claim.
13. The applicant for the patent has failed to disclose to the Controller the information and undertaking regarding foreign applications or has furnished false information.
14. The applicant contravened any direction for secrecy relating to inventions relevant for defence or made / caused to be made an application for the grant of a patent outside India without prior permission from Controller.
15. The leave to amend the complete specification before the Controller and Appellate Board or High Court was obtained by fraud.
16. The complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention.
17. The invention as claimed was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.
18. The applicant has made the application abroad before filing it in India or without taking permission from the controller or in contraversion.
19. The complete specification does not clearly mention or wrongly mentions the origin or geographical source of biological material.
Other than this patent revocation can be made by Central Government directions if Invention related to Atomic Energy according to Sec 65 of Indian Patent Act and it can be revoke by public Interest according to sec 66 of Indian Patent Act.
Revocation of a Patent or Amendment of a Complete Specification on Direction from the Government in Cases related to Atomic Energy: Under Section 65, where at any time after the grant of a patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for which a patent cannot be granted under the Atomic Energy Act, 1962, it may direct the Controller to revoke the patent. The Controller may then give notice to the patentee and all the persons who appear on the register as having an interest in the patent, and after giving them an opportunity to be heard, he may revoke the patent.
Revocation of a Patent in Public Interest: Under Section 66, where the Central Government is of the opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a declaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked.
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