Checking the Validity of Patents in India

India has sound systems in place to check quality of patents .validity of patents can be challenged under:

Sec 25(1): Pre grant opposition: Under this section a patent may be opposed by any person anytime after the patent application is published but before its grant. The proceedings under pre-grant opposition are ex-parte .

Sec 25(2): Post grant opposition: Under this section “any interested person” may oppose the patent within 1 year of publication of date of grant of patent .The proceedings under post grant opposition are Inter-partees

Sec 64: Revocation of patent: Under this section a patent may be revoked any –time during the life of a patent by a person interested.

Both pre and post grant opposition provide for pre-litigation mechanisms for challenging the validity of patents. They can be used to argue against the unsubstantiated claims made by the patent holder without going to court of law or infringing the patent, both of which are expensive options.

A person may also file a petition for revocation with the Intellectual Property Appellate board (IPAB). The revocation proceedings can take place in the Appellate board while the high court will entertain revocation proceedings only when counter claim is made by the alleged infringer.

3.3 Appeal:

In case of post grant oppositions unlike pre grant oppositions ,the decision of the controller can be appealed in the Appellate Board.A patent invalidation application is the defense most frequently used in patent infringement litigation. The existence of a valid patent is the precondition for a patent infringement claim. In patent infringement litigation, the court, will not deny the validity of a patent directly and will make a decision on patent infringement only after the ...

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... provisional specification in a convention country

j) Incorrect mention of source/geographical origin of biological material

If the invention is using biological material, such a material shall be deposited at an International Depository Authority for the completion of the application on or before the date of filing/priority. Further, the source and geographical origin of the biological material specified in the specification also should be disclosed therein. Sequence listing is submitted electronically & may also be numbered in the specification if necessary in the case of Biotechnology inventions.

k) Invention anticipated with regard to traditional knowledge of any community, anywhere in the world.

The invention claimed in any claim of the complete specification is not novel with respect to prior knowledge, traditionally known to local communities of India.