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CS Professional · Intellectual Property Rights - Law and Practice · Patent Documentation, Examination and Infringement

Veda Pharma Ltd sues Kiran Labs for infringing its process patent. Kiran Labs argues that the patent is liable to be revoked on one of the grounds on which a patent can be revoked under section 64. Can Kiran Labs raise this as a defence in the infringement suit?

Yes. Under section 107(1), in any infringement suit every ground on which the patent may be revoked under section 64 is available to the defendant as a ground of defence. The defence is not confined to particular grounds and needs no separate petition first.

  1. ANo, revocation grounds can be pursued only through a separate revocation petition and never as a defence
  2. BYes, every ground on which the patent may be revoked under section 64 is available as a ground of defenceCorrect
  3. CYes, but only the ground of prior publication may be raised as a defence
  4. DYes, but only if Kiran Labs has first obtained a certificate of validity

Explanation

Section 107(1) provides that in any suit for infringement every ground on which the patent may be revoked under section 64 is available as a defence. Option A contradicts this. Option C wrongly limits the grounds, and a certificate of validity under section 113 is unrelated to raising the defence.

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