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

Veda Pharma sues Kiran Labs for infringing its process patent. Kiran Labs, in its written statement, argues that the patent is liable to be revoked because the invention was publicly known in India before the priority date. Under the Patents Act, 1970, is this a permissible defence in the infringement suit?

Yes. Under section 107(1), every ground on which a patent may be revoked under section 64 can be used as a defence in an infringement suit, so Kiran Labs can plead prior public knowledge without first filing a separate revocation petition.

  1. ANo, invalidity can be raised only in a separate revocation petition and never in the infringement suit
  2. BYes, every ground on which a patent may be revoked under section 64 is available as a defence in the suitCorrect
  3. CYes, but only if the Controller has already revoked the patent before the suit was filed
  4. DNo, the defendant may raise only the grounds listed in section 47

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 ground of defence. Prior public knowledge is a revocation ground, so Kiran Labs may plead it directly. Option A is wrong because it ignores section 107(1).

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