Revocation of Patent in India – A Complete Overview

Revocation of Patent In India - Intellect Vidhya Solutions Bangalore

What is Revocation of Patent?

Revocation, in its broadest sense, is the action of taking back something that has previously been granted. The same is true with patents, which cannot be regarded as permanent once issued. Revocation of a patent refers to the revocation of the patentee’s previously obtained rights. Any interested party may file a petition for the revocation of a patent, or the Central Government may do so as well.

Ground for revocation of Patent:

The grounds for revocation of Patent is given in Section 64 of the Indian Patent act, 1970:

  • An invention having identical specifications in another Indian patent that was issued with a preceding filing date or priority date.
  • The grant of Patent was done to a person who was not entitled for the same.
  • A person who is legally entitled to the Patent received it from another without authorization. A different person who is legitimately entitled to the patent may submit a request for its revocation. 
  • According to Section 2(1)(j) of the 1970 Patent Act, the invention claimed in the awarded patent is not real.
  • The invention claimed in the patent lacked novelty in light of past public use or prior knowledge.
  • The innovation has no practical application, which means that the Patent is not being used at all or is not producing the expected outcomes as described in the Patent specifications.
  • The Patent lack any inventive step.
  • The claimed invention, which is a product of import to India, is not a recent development. The invention was widely publicized and in use in India prior to the publication date or priority date.
  • The specifications of the patent do not sufficiently or clearly explain the scope of any claim.
  • The patent specification falls short of accurately or sufficiently describing the invention or its processes.
  • A misleading representation or implication was used to obtain the Patent. The claim or suggestion must be in accordance with any fact or representation made in connection with the grant of the patent or with any of the specifications thereof.
  • In accordance with Section 8 of the Patent Act of 1970, the patent applicant has not revealed all the necessary information. Additionally, the applicant provided inaccurate information about the invention.
  • In accordance with Section 35 of the Patent Act of 1970, the Patent Applicant failed to comply with the Controller’s request for confidentiality.
  • The Controller’s failure to abide by the confidentiality directive when a patent application was filed outside of India without his or her prior consent.
  • The applicant secured the right to change a patent’s whole specification under Sections 57 or 58 of the Patent Act of 1970 by fraud.
  • The geographical origin or source of the biological material used in the invention are not fully disclosed in the patent’s specification.
  • Any local or indigenous community in India or elsewhere has access to the traditional knowledge asserted in the patent specification.

The Supreme Court (SC) explained in its ruling in the case of Dr. Aloys Wobben & Anr. vs. Yogesh Mehra & Ors that, in accordance with Section 64 of the Patent Act, 1970, a patent may be revoked either through the submission of a revocation petition to the Intellectual Property Appellate Board (IPAB) or through the filing of a counterclaim in a lawsuit alleging patent infringement. The patent holder cannot be sued in both cases at the same time by the person challenging the validity of the patent. The challenger won’t be able to use the other remedy if the court tries to use one of the remedies.

Other provisions for revocation of patents:

Section 65-Revocation in cases related to Atomic Energy:

The Central Government may revoke a patent, according to Section 65 of the Patent Act of 1970. The Central Government may only revoke a patent after proving that the invention covered by the patent has something to do with atomic energy. According to the restrictions outlined in the Atomic Energy Act of 1962, patents cannot be granted for inventions relating to atomic energy. As a result, the Central Government of India does not permit the grant of a patent for an invention involving atomic energy.

Section 66-Revocation of Patent in Public Interest:

According to Section 66 of the Patent Act of 1970, where the Central Government believes that a patent or the way in which its connected rights are exercised is damaging to the general public or the State, the patent should be cancelled. The patent holder should be given a fair chance to exercise his or her right to be heard. The decision to revoke the patent will be made in accordance with the circumstances after the patent holder has been given an opportunity to respond.

Section 85-Revocation by Controller for Non-Working:

According to Section 85 of the Patents Act of 1970, a patent may be cancelled for failure to function. Any interested party or the government may submit an application to the Controller for the revocation of a patent with regard to a patent for which a compulsory license has been issued. Within two years of the compulsory license being granted, the patent revocation must be filed.

The grounds for Revocation are

  • The patented invention does not function in Indian territory;
  • The patent is not being used in a way that satisfies the reasonable requirements of the general public;
  • The patented invention is not accessible to the general public for an affordable price.

Conclusion

The exclusive rights that have been given to the patentee with regard to an invention are cancelled when a patent is revoked. A patent may be revoked under Section 64 of the Act on a petition from any interested party, on a request from the Central Government made to the Appellate Board, or on a counterclaim made in a lawsuit brought by the High Court alleging patent infringement.

Share:

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on whatsapp
WhatsApp
Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp

Categories

Search

    Categories

    Recent Posts

    • All Post
    • Copyright
    • Design Patents
    • Patent Filing
    • Patent Search
    • Trademark

    Related Posts

    Micro Copyright in India: Protecting Small-Scale Creative Works

    In the digital age, the creation and sharing of content have reached unprecedented heights. With the proliferation of user-generated content, short-form media, and the increasing significance of individual contributions to larger works, the concept of “micro copyright” has emerged. Micro copyright refers to the protection of smaller, often more granular, creative expressions. In the context of Indian copyright law, this concept presents unique challenges and opportunities. This article explores the intricacies of micro copyright and the conundrums surrounding its protection in India. Understanding Micro Copyright Micro copyright encompasses the rights associated with smaller creative works such as social media posts, memes, short videos, gifs, and even individual elements within larger works, like specific phrases or designs. These forms of content, while often brief and seemingly inconsequential, can hold significant value and can be the subject of copyright protection. The Legal Framework of Copyright in India The Indian Copyright Act, 1957, primarily governs copyright protection in India. The Act provides protection to original literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings. For a work to be protected, it must be original and expressed in a tangible form. Challenges in Protecting Micro Copyright 1. Originality and Fixation One of the fundamental requirements for copyright protection is that the work must be original and fixed in a tangible medium. This can be challenging for micro content, where the line between original creation and common expression is often blurred. Determining the originality of a tweet, meme, or short video clip can be subjective and contentious. 2. De Minimis Doctrine The de minimis doctrine, which means “about minimal things,” can pose a significant challenge for micro copyright. This doctrine suggests that the law does not concern itself with trivial matters. Small snippets of content might be considered too insignificant to warrant protection, leaving creators without legal recourse for unauthorized use. 3. Fair Use The concept of fair use allows for limited use of copyrighted material without requiring permission from the rights holders. In the context of micro copyright, determining what constitutes fair use can be particularly tricky. For instance, sharing a meme or a short clip might be considered fair use, but if it goes viral and gains commercial value, the original creator might seek protection and compensation. 4. Enforcement and Attribution Even if micro content is eligible for copyright protection, enforcing these rights can be challenging. Monitoring the vast expanse of the internet for unauthorized use of small-scale content is a daunting task. Additionally, the ease with which digital content can be shared and altered complicates the process of ensuring proper attribution and compensation. The Way Forward 1. Clearer Guidelines and Definitions To address the challenges of micro copyright, clearer guidelines and definitions are needed within the Indian Copyright Act. Defining what constitutes a protectable micro work and setting standards for originality can provide better clarity for creators and users alike. 2. Digital Rights Management (DRM) and Technology Leveraging technology, such as digital rights management (DRM) systems and content recognition algorithms, can help creators monitor and enforce their copyright more effectively. These technologies can automate the process of identifying unauthorized uses and facilitate easier enforcement. 3. Education and Awareness Increasing awareness among creators about their rights and the mechanisms available for protecting their content is crucial. Educational campaigns and resources can empower creators to navigate the complexities of copyright law and safeguard their micro creations. 4. Legal Reform and International Cooperation Given the global nature of digital content, international cooperation and harmonization of copyright laws can play a significant role in addressing the challenges of micro copyright. Legal reforms that consider the unique nature of digital content and micro works can provide a more robust framework for protection. Conclusion The rise of micro copyright in the digital era presents a unique conundrum under Indian copyright law. While the current legal framework provides a foundation for protecting creative works, the nuances of micro content require more specific attention and adaptation. By addressing the challenges of originality, fair use, enforcement, and attribution, and by leveraging technology and education, India can better protect the rights of creators in the evolving landscape of digital content.

    Read More »
    July 20, 2024 No Comments
    Importance of Trademarking your Restaurant Name - Intellect Vidhya

    Importance of Trademarking your Restaurant Name

    Have you ever walked into a restaurant, drawn by its catchy name or eye-catching logo, only to discover that it’s not the establishment you thought it was? In the bustling food and hospitality industry of India, this scenario is becoming increasingly common. As more and more eateries pop up, it’s crucial for restaurant owners to protect their brand’s identity through trademark registration. A trademark is like a unique fingerprint that sets your goods or services apart from the competition. It’s a legal stamp that says, “This is ours, and no one else can use it.” And in the world of restaurants, where first impressions can make or break your business, a strong trademark can be a game-changer. Why Trademarks Matter for Restaurateurs? Success Stories of Trademarked Restaurant Brands The Consequences of Neglecting Trademark Protection In the vibrant culinary landscape of India, trademarking your restaurant brand is more than just a formality – it’s a strategic move that can safeguard your business identity, maintain brand recognition, and provide legal recourse against infringement. By understanding the importance of trademarks and understanding the appropriate registration process under Indian trademark law, you can protect your valuable intellectual property and pave the way for a future as bright as a perfectly cooked dish, fresh out of the kitchen.

    Read More »
    July 13, 2024 No Comments
    The Significance Of Prior Use In The Trademark Law Vans V Ivans - Intellect Vidhya

    The Significance of Prior Use in the Trademark Law: Vans v. Ivans

    In the complex realm of intellectual property rights, few principles hold as much significance as the concept of “prior use” in Indian trademark law. The recent ruling by the Delhi High Court in the Vans v. Ivans case has brought attention to the fundamental concept of giving precedence to the first user of a trademark in the market. The Vans v. Ivans Case: The case centred on a disagreement between Vans Inc., a well-known American footwear and apparel company, and FCB Garment Tex, an Indian company that used the “IVANS” trademark. Vans Inc. filed a request to invalidate FCB Garment Tex’s trademark registration in India, claiming that their “VANS” mark had recently gained recognition as a well-known trademark in the country. Nevertheless, the Delhi High Court ruled in favour of FCB Garment Tex, citing the prior use principle. Important Factors in the Court’s Decision The court’s ruling was influenced by several crucial elements. Firstly, it emphasised that FCB Garment Tex had been using the “IVANS” mark in India for years before Vans Inc. entered the market, applying the “first in the market” principle. Furthermore, the court made it clear that simply declaring a trademark as well-known does not automatically give the owner the authority to cancel other marks that were used earlier in India. Finally, the court determined that FCB Garment’s utilisation of the marks was both sincere and simultaneous, granting them protection under Section 12 of the Trade Marks Act. Supporting the Principle of Prior Use This landmark ruling is a strong affirmation of the prior use principle in Indian trademark law. This principle emphasises that the initial user of a trademark in the market holds greater rights compared to later users, regardless of their registration status. This concept is deeply embedded in the Indian Trade Marks Act, 1999, and aims to safeguard businesses that have dedicated significant time and resources to establish their brand identity in the market. The Reasoning Behind Prior Use There are several reasons behind the prior use principle. It strives to recognise and safeguard businesses that have proactively built their brands in the marketplace. By prioritising the initial user, the law recognises the dedication and resources required to establish a strong brand presence and cultivate customer loyalty. This principle also helps to prevent unfair competition by ensuring that well-known brands are not replaced by new ones with similar marks, thus maintaining consumer trust and market stability. Territorial Nature of Trademark Rights In addition, the principle of prior use acknowledges the territorial nature of trademark rights. The Vans v. Ivans case clearly illustrates that having a worldwide reputation is not enough to establish legal rights in a particular jurisdiction. The principle highlights the significance of establishing a tangible market presence and utilising a trademark within India, rather than solely relying on international recognition or registration in other nations. Engaging with well-known Trademarks The prior use principle also has implications for other aspects of trademark law, including the recognition of well-known trademarks. The ruling by the Delhi High Court provides clarity on the advantages of having a well-known trademark status, while also acknowledging the rights of prior users in the market. This delicate equilibrium ensures the safeguarding of well-known local brands while acknowledging the prestige and recognition of globally renowned trademarks. Practical Considerations for Trademark Owners In practice, trademark owners are faced with a significant burden of maintaining proper documentation of their trademark use due to the prior use principle. This encompasses sales records, advertisements, and proof of customer recognition. Consistent and authentic use of the mark is essential, as any substantial gaps in usage can undermine a prior use claim. Conclusion Ultimately, the verdict of the Delhi High Court in the Vans v. Ivans case serves as a strong affirmation of the prior use principle within Indian trademark law. It emphasises the significance of having a strong market presence and building a reputable brand in order to establish and safeguard trademark rights in India. As the country continues to attract global brands while nurturing its own business ecosystem, this principle will undoubtedly have a significant impact on the development of trademark strategies and dispute resolutions.

    Read More »
    July 12, 2024 No Comments
    The Ethical and Legal Dilemma of AI Voice Cloning in the Music Industry - Intellect Vidhya

    The Ethical and Legal Dilemma of AI Voice Cloning in the Music Industry

    In recent years, artificial intelligence (AI) has made remarkable progress in various fields, including music production. Voice cloning in music has been a subject of intense debate, raising questions about copyright infringement, moral rights, and the preservation of artistic integrity. The recent criticism voiced by legendary Indian playback singer Kumar Sanu against AI voice duplication brings attention to the mounting concerns within the music industry. Power and Potential of AI Voice Cloning AI voice cloning technology has made significant progress in recreating the voices of singers with outstanding precision. This ability has resulted in the development of new songs that utilise the voices of artists who have passed away, as demonstrated in the recent example of “Pehle Hi Main.” This song was created using an AI-generated voice that mimics the late Mohammed Rafi, who sadly passed away in 1980. Although this technology presents fascinating opportunities for music production and preservation, it also brings up important ethical and legal concerns. Dealing with Copyright Infringement Copyright infringement is a significant legal concern when it comes to AI voice cloning. A singer’s voice is regarded as their valuable asset, safeguarded by copyright laws in numerous jurisdictions. When AI is employed to imitate a singer’s voice without authorization, it may potentially infringe upon copyright protections. This encompasses violations of reproduction rights, distribution rights, and the unauthorised creation of derivative works. Moral Rights and Personality Rights In addition to copyright concerns, AI voice cloning also brings up ethical and legal questions surrounding moral rights and personality rights. It is important for singers to safeguard their work from any alterations or manipulations that may negatively impact their reputation. Additionally, there is a potential for confusion and misrepresentation when AI-generated voices are not explicitly identified. Furthermore, in numerous legal systems, people possess the authority to regulate the commercial exploitation of their identity, appearance, or voice. Voice cloning might be perceived as a violation of these rights. Cloning the Voices of Deceased Artists Using AI to replicate the voices of deceased artists, such as Mohammed Rafi, brings about a whole new set of challenges. Although copyright protection usually lasts for many years after an artist’s passing, the ethical considerations surrounding the use of a deceased artist’s voice without their permission are quite substantial. There are concerns regarding the preservation of the legacy and artistic intentions of deceased musicians. Industry Response Kumar Sanu’s decision to pursue legal protection against AI voice cloning demonstrates a rising recognition of these concerns within the music industry. Other artists and industry professionals are also advocating for the establishment of regulatory frameworks to oversee the utilisation of AI in music production. There are several potential solutions being discussed to address the challenges posed by AI in music. These include establishing licencing protocols for the use of AI-cloned voices, requiring clear disclosure when AI voice cloning is used in a production, and developing specific laws to tackle these unique challenges. The Path Forward As AI technology advances, it is essential for the legal system to stay up to date. Collaboration between the music industry, legislators, and AI developers is crucial in establishing a framework that balances the protection of artists’ rights with the promotion of innovation. This could potentially include the need to revise copyright laws to specifically tackle AI-generated content, setting industry norms for the ethical application of AI in music production, and devising methods for artists to maintain control over and profit from the utilisation of their AI-replicated voices. Conclusion The emergence of AI voice cloning technology brings forth a range of possibilities and complexities for the music industry. Although it presents exciting opportunities for creativity, it also raises serious concerns regarding artists’ rights and the authenticity of their work. As evidenced by Kumar Sanu’s case, it is clear that there is a pressing requirement for the establishment of legal and ethical frameworks to regulate the utilisation of this technology. As we move forward with the more enhanced versions of AI, it’s crucial to find a harmony between technological advancement and safeguarding artists’ rights. It is crucial to establish thoughtful regulation and foster industry cooperation to ensure that AI positively impacts the creative ecosystem of the music industry.

    Read More »
    July 8, 2024 No Comments