Tuesday, December 13, 2011

Non-working Isn’t a Ground of Revocation of a Patent: Why?

Section 64 of the Patents Act, which lists the grounds for revoking a patent, is exhaustive. No ground which is not mentioned in Section 64 can be used to impugn the validity of a patent. This much is obvious. But why does not Section 64 provide a ground for revocation of a patent for non-use/non-working of the patent?

The only remedies available under the Patents Act for non-working of a patent appear to be an application for compulsory license under Section 84 and an application for revocation under Section 85.

A reading of Section 85, in fact, tells us that an application for revocation under Section 85 may be made only after the expiration of 2 years from the date of the order granting the first compulsory license. It appears, under the framework of the Act, for a patent to be invalidated on grounds of non-working, it is mandatory to first apply for a compulsory license before seeking revocation under Section 85.

May be the Patents Act is not so anti-patentee after all…..

But why should an un-worked patent not be revoked directly? Why is the compulsory license route mandatory before seeking revocation of a patent for non-working? Why shouldn’t revocation be an option after three years from the date of grant? Shouldn’t an “interested person” have the option of choosing between revocation and compulsory license, instead of reaching the former after the latter? 

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