Admist the entire controversy of frivolous patents being granted to innovator companies the Controller General of Patents recently made the following statement to the press: “At the present law, there is no provision to review already granted patents by the patent office once the post-grant opposition period (one year after the grant) is over. But it can be revoked by moving the Intellectual Property Appellate Board or courts of law against the wrongly granted patents.Image from here.
Where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a delcaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked.
It appears to me that this Section provides either the Patent Office or the DIPP, Ministry of Commerce with a power to review the grant of patents. A frivolous pharmaceutical patent would be greatly prejudicial to the public and should therefore be revoked under this provision. Since the Act does not define Central Government it would appear to me that as long as the Order is made under the seal of the President of India it would lead to a revocation of the patent.
According to this Mint report the DIPP has already endorsed either the IPA or the NIPO Report. In pertinent part the Mint Report states that:
If this is true it would appear to me that the Government of India is already convinced that frivolous patents have been granted to innovator companies. All it needs to do now is to issue showcause notices to the patentees following which it can start knocking down these allegedly frivolous patents.
in my view, it wont be proper to call it a ‘reviewing’ power. the grounds herein r just two (1.mischievous to the State or 2. generally prejudicial to the public), which r extremely limited in scope n applicability. on the other hand, the so-called ‘frivolous’ patents may not necessarily satisfy any of these two criteria. in fact, most likely, most of the so-called ‘frivolous’ patents wud fall outside its scope. in my view, it wud be over-extending (n hence illegal) its jurisdiction. all the more so, coz the dipp is not technically competent to ‘review’ any patent’s validity (the only competent body is IPO/IPAB/HC).
-aditya kant
excellent thought
@mnbvcxzaq1: I agree with you – Section 66 will apply only in limited cases. A frivolous pharmaceutical patent may just qualify as being prejudicial to the general public. In regards the competence of the DIPP I am sure the DIPP can always refer the question to the Controller of Patents before deciding to strike down the patent.