Revocation of Patent refers to the legal process by which a granted patent is cancelled or invalidated, either wholly or partially. Common grounds for revocation include lack of novelty, inventive step, or patentable subject matter, as well as procedural irregularities.
What is Patent Revocation?
Patent revocation is the statutory process of cancelling a granted patent when it does not fulfill the required criteria of intellectual property law. It assures that only genuinely novel and non-obvious inventions are granted protection, avoiding unjust monopolies and promoting competitive fairness. Revocation can take place due to insufficient novelty, obviousness, lack of disclosure, fraud, or when a patent causes harm to public interest, like limiting access to vital medicines. By removing invalid patents, revocation protects innovation, encourages technological advancement, and ensures that intellectual property rights benefit inventors and society equally.
Legal Framework for Revocation of Patent
The legal framework for patent revocation is outlined in Section 64 of the Patents Act, 1970. Patents can be revoked on grounds such as prior claims, eligibility issues, or wrongful acquisition. Revocation proceedings can be initiated by an interested party, the Central Government, or as a counterclaim in a patent infringement suit.
Revocation is done by filing a petition in the High Courts, by a counterclaim in a suit for infringement, or by the Central Government where a matter is involving public interest. Earlier, the Intellectual Property Appellate Board (IPAB) disposed of revocation appeals, but that function has shifted to the High Courts. The grounds for revocation are absence of novelty, obviousness, non-disclosure of critical details, or wrongful acquisition. The procedure is usually one of filing a petition, reply through counterclaims, and then undergoing appellate steps for examination, so that only legally sound patents continue to exist.
Grounds for Revocation of Patent
A patent can be revoked on several legal grounds, which can impact its validity. It is important for both the challengers and the patent holders to know these grounds for securing intellectual property rights. Below is a list of grounds on which patent Revocation can be done:
- Grounds for Revocation of Patent
Revocation of a patent is an important legal remedy to ensure a balanced, fair, competitive, and innovation-based environment while keeping in check public welfare and industrial advancement.
- Section 64: Overall Reasons for Revocation of Patents
Section 64 of the Patents Act, 1970, provides that a patent can be revoked on some general grounds, such as novelty, obviousness, industrial inapplicability, fraudulent obtainment, or non-patentable subject matter. Novelty refers to the fact that the invention has to be new and not already publicly disclosed prior to the patent application. If an invention does not have an inventive step—i.e., it is an obvious development of known technology—it can also be revoked. Also, patents that do not satisfy industrial applicability—the condition that an invention must be able to be practically used—can be invalidated. Patent frauds, like patents received by misrepresenting facts, are subject to revocation. An example is the cancellation of the Novartis Glivec patent in India as it was deemed to be an incremental change over a known drug and did not pass the inventive step test.
- Section 66: Revocation of Patent in Public Interest
Section 66 gives the power to the Central Government to revoke a patent on grounds that it would be injurious to public health, safety, or welfare. This clause avoids giving patents that inappropriately limit access to basic commodities or abuse traditional knowledge.
One prime example is the recall of patents on neem and turmeric during the 1990s, when the government acted after learning that these patents were founded on centuries-old India traditionally used knowledge. Such recalls safeguard indigenous knowledge and avoid unfair monopolisation of publicly acknowledged remedies.
- Section 85: Cancellation of Patents for Non-Working
A non-working patent is one that is not commercially utilised within the country, hindering public access to the invention. As per Section 85, an interested party or a compulsory licensee may request revocation if the patentee doesn’t work the patent for three years from the time a compulsory license is issued. The goal is to avoid patent hoarding that restricts availability or prices items out of reach.
One such example is the compulsory license issued to Natco Pharma for Bayer’s Nexavar, a cancer medication, based on excessive pricing and restricted availability in India. Bayer would have had the patent revoked if they failed to comply with compulsory license stipulations.
- Revocation of Patents for Breach of Compliance
Patents can also be revoked for breaking secrecy instructions or other conditions laid down by the government. For example, inventions on atomic energy are subject to stringent regulations, and patents relating to nuclear technology can be withheld or revoked in the national interest of security. In the same vein, patents issued with particular working conditions can be revoked in case those conditions are violated. This is done to ensure that patents are consistent with wider national and public safety concerns.
Revocation of Patent Rights
Patent rights provide inventors with sole ownership of their inventions, enabling them to produce, use, and sell their innovation for a specified duration. Patent rights stimulate innovation through the offer of a temporary monopoly as an incentive. Patent rights can be withdrawn if they do not meet legal standards, such as:
- Lack of novelty or originality – If the invention is not novel or has been made publicly available prior to patent application
- Non-working of patent – If the patentee fails to commercially exploit the invention within a reasonable time
- Fraudulent acquisition – If the patent was acquired by misrepresentation or false statements
- Public interest concerns – If the patent is prejudicial to public health, safety, or welfare (e.g., overpricing of life-saving drugs)
- Non-compliance with conditions – If the patentee contravenes legal conditions imposed at the time of grant
- Loss of Rights: After cancellation, the exclusive rights of the patent holder are lost, enabling competitors and the public to freely use the invention.
Petition for Revocation of Patent
A petition for revocation can be filed by parties who believe the patent was wrongly granted, those holding a compulsory license who find the patent non-working, or if the patent poses a threat to public interest or national security. Any person or entity affected by the patent’s existence may also initiate revocation proceedings.
Steps to File a Petition for Patent Revocation
- Identify Grounds for Revocation – Establish the legal ground (e.g., absence of novelty, fraud, or non-working)
- Prepare and Submit Petition – Prepare a petition with the High Court or as a counterclaim against an infringement lawsuit
- Provide Supporting Evidence – Send documents, references to prior art, expert testaments, or technical information
- Responding to Counterclaims – The owner of the patent may send counterarguments or modifications for the purpose of defending the patent
- Legal Proceedings and Appeals – Either side has the opportunity to appeal the unfavorable initial ruling in higher courts.
Procedure for Revocation of Patent
Revocation of patents guarantees that legal patents only are enforceable. Revocation has a formal, sequential process of petitions, examination, hearings, and possible appeals, which weighs innovation protection against legal and public interests. Here is a step-by-step process for the same:
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Step 1: Filing a Revocation Petition or Counterclaim
A petition for revocation is made to the High Court by an interested party, competitor, or central government on grounds of law such as absence of novelty, obviousness, or non-working. A counterclaim can also be made in cases of infringement.
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Step 2: Examining Revocation of Petitions
The court examines the petition, considering technical reports, existing art, expert witness statements, and arguments of law to ascertain patent validity. Support from experts can be obtained in order to guarantee adherence to patentability standards.
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Step 3: Hearing and Decision
The parties make their arguments, and the court considers evidence to rule on revoking, amending, or affirming the patent. The ruling takes into account legal precedents, technical considerations, and the wider industry impact.
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Step 4: Appeals Process
Parties can appeal to a superior court, like the Supreme Court of India, for review. The appeal provides room for reconsideration of evidence to ensure procedural fairness and safeguard intellectual property rights.
Revocation of Patent Case Law
Patent revocation cases give valuable insights into the interpretation of legal provisions by courts and how only valid patents are left enforceable. Some of the most important cases explaining various grounds for revocation are mentioned below.
Novartis AG v. Union of India (2013) – Lack of Novelty and Inventive Step
Novartis applied for a patent on Glivec, a cancer medication, stating it was a new variant of an existing compound. The Indian Supreme Court dismissed the patent under Section 64 and Section 3(d) of the Patents Act, 1970, stating that the alteration had no substantial inventive step and did not improve therapeutic efficacy. The case established precedence against ‘evergreening,’ so that small changes cannot attain patent protection.
Monsanto Technology LLC v. Nuziveedu Seeds Ltd. (2018) – Non-Patentable Subject Matter
Monsanto’s patent on Bt cotton seed technology was challenged under Section 64. The Delhi High Court held that as the patent related to a biological process, it came within the category of non-patentable subject matter under Section 3(j) of the Patents Act. The case reiterated the law that genetically modified seeds and biological processes cannot be patented in India.
Bajaj Auto Ltd. v. TVS Motor Company (2009) – Industrial Applicability
Revocation of TVS Motor’s patent for a two-wheeler engine design was sought by Bajaj Auto on grounds of lack of industrial applicability and reliance on prior art. The Madras High Court supported the revocation on grounds of lack of novelty and inability to show practical implementation, highlighting the fact that patents should provide for a definite industrial use.
Avesthagen v. IPAB & Others (2012) – Revocation for Public Interest
The patent held by Avesthagen over a medicinal formulation developed from indigenous Indian plants was revoked under Section 66 on account of doubts raised over it taking away traditional knowledge. The government stepped in and decided that the patent inhibited public access to traditional remedies, citing the need for safeguarding public interest as well as cultural heritage.
Challenges in Patent Revocation Processes
Revocation of a patent is a complicated legal process that presents serious challenges for petitioners and patent owners alike. The process tends to be delayed, poses evidentiary challenges, and pits public interest against private interests, making it hard to find a reasonable balance:
Long and Expensive Legal Wars
Patent revocation cases may take years as they are bogged down in courts, subjected to several hearings, and appeals. For example, multinational firms frequently use prolonged litigations to assert their patents, rendering it economically draining for smaller opponents. An example may be a start-up that takes years to revoke a patent held by a giant pharmaceutical firm in spite of cogent proof of absence of novelty.
Challenges in Establishing Reasons for Revocation
Establishing a lack of novelty, inventive step, or non-working of a patent demands extensive evidence, including prior art documents, expert testimonies, and technical reports. Most revocation cases fail due to petitioners not having access to adequate technical proof or failing to determine a clear legal transgression. For instance, revoking a pharmaceutical patent would normally demand scientific data that is time-consuming and expensive to acquire.
Conflict Between Patent Rights and Public Welfare
Patent revocation in the public interest is contentious, as it could deter innovation. It is challenging for governments to reconcile patent protection with public good, particularly in medicine, agriculture, and technology. An example from reality is the Novartis Glivec case, where public access to low-cost medicine took precedence over long-term patent protection.
Delays Due to Appeals and Counterclaims
Patent owners frequently make counterclaims and appeals, extending the process and making it more difficult for genuine revocation petitions to prevail. A revoked patent may occasionally be restored by appeals, leading to market uncertainty. For example, revocation proceedings for biotechnology and AI patents frequently experience extended litigation due to changing legal interpretations.
Conclusion
Revocation of a patent is a crucial legal safeguard that ensures only valid and enforceable patents remain in effect. By allowing challenges based on specific grounds, it maintains the integrity of the patent system and protects public interest. Whether you’re a patent holder or a third party, understanding the revocation process is essential for navigating the intellectual property landscape effectively.
Vakilsearch conducts detailed prior art searches to file revocation petitions and defend your patent rights. We offer end-to-end support through a team of experienced IP professionals. Whether you’re an inventor, startup, or established business, Vakilsearch ensures your intellectual property is secured, compliant, and strategically managed. With transparent pricing, quick turnaround, and personalised legal assistance, Vakilsearch makes the patent process simple and stress-free.
FAQs: Revocation of Patent
What does revocation of a patent mean?
Patent revocation is the legal process of nullifying an existing patent. It occurs when the patent fails to meet essential requirements like novelty, inventive step, or industrial applicability, or if compliance violations are found.
What are the common grounds for revocation of a patent?
Patents may be revoked due to: Lack of novelty (prior existing technology). Absence of an inventive step. Non-patentable subject matter. Inadequate disclosure of the invention. Failure to work the patent within the country. Public interest concerns or misuse of patent rights.
Who can file a petition for patent revocation?
A revocation petition may be filed by: Any interested third party, such as a competitor The Central Government if the patent threatens public interest A defendant in a patent infringement lawsuit as a counterclaim.
What is Section 64 of the Patents Act, 1970?
Section 64 outlines general grounds for patent revocation, including: Lack of novelty, inventive step, or industrial applicability Fraudulent procurement of the patent Insufficient disclosure of the invention Subject matter that is not patentable under the law
Can a patent be revoked for non-working in India?
Yes, under Section 85, a patent may be revoked if it is not being worked in India or does not fulfill public demand. Revocation may also occur if the patent is overpriced or if licensing is unfairly restricted.
What is Section 66 of the Patents Act related to public interest?
Section 66 empowers the Central Government to revoke patents that are detrimental to public interest, public health, safety, or the environment, ensuring societal welfare takes precedence over exclusive patent rights.
What happens after a patent is revoked?
Once revoked: The patent holder loses all exclusive rights to the invention The invention becomes publicly accessible, allowing free use and commercialisation It fosters competition and prevents monopolistic exploitation.
