Who May Seek Revocation, and Where

In one line

Only a person interested, the Central Government or a defendant by counter-claim may seek revocation, it goes to the High Court, and a person may not run two of these remedies over the same patent at once.

In the wording a student can write in an exam: section 64(1) of the Patents Act, 1970 provides that a patent may be revoked on a petition of any person interested or of the Central Government, or on a counter-claim in a suit for infringement, by the High Court; and section 2(1)(t) defines a person interested to include a person engaged in, or in promoting, research in the same field as that to which the invention relates.

The three routes

Route one: a petition by a person interested. Filed in the High Court, at any time during the life of the patent.

Route two: a petition by the Central Government. Under section 64(1), on any of the seventeen grounds; and separately under section 64(4), where the patentee has without reasonable cause failed to comply with a request to make, use or exercise the invention for the purposes of Government on reasonable terms.

Route three: a counter-claim in an infringement suit. The defendant, sued under section 104, counter-claims that the patent should be revoked. The proviso to section 104 then transfers the suit and the counter-claim to the High Court, and chapter 1060 works it.

And note what is not a route. A post-grant opposition under section 25(2) is not revocation: it goes to the Controller, is confined to one year and to eleven grounds, and is a different proceeding. Chapters 560 and 570 work it.

Who is a person interested

Section 2(1)(t). "Person interested" includes a person engaged in, or in promoting, research in the same field as that to which the invention relates.

"Includes" makes the definition extensive, not exhaustive. The named category, a researcher, is the one Parliament wanted to put beyond argument; the ordinary meaning survives alongside it.

Who qualifies in practice. A manufacturer in the same trade. A trader dealing in the article. A person the patentee has threatened. A research institute or a university department working in the field. A generic manufacturer preparing a product that the patent would block.

Who does not. A stranger with no connection to the art. A person acting for somebody who will not come forward, though this is a question of fact.

And the standard is real interest, not a bare assertion. Section 64 requires the petition to be by a person interested, and the point can be taken as a preliminary objection.

Compare section 25(1), where any person may file a pre-grant representation with no interest at all. Chapter 550 works the contrast, which is examined constantly.