Patents Act, 1992
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Circumstances in which validity of patent may be put in issue. |
61.—(1) Subject to the following provisions of this section, the validity of a patent may be put in issue only on a ground which is one of the grounds specified in section 58 , and, in addition to the foregoing, such validity shall be raised only— | |
(a) by way of defence in proceedings for infringement under section 47 or 56 , or | ||
(b) in proceedings under section 53 or 57 , or | ||
(c) pursuant to section 77 . | ||
(2) No determination shall be made in any proceedings mentioned in subsection (1) on the validity of a patent which any person puts in issue on the ground specified in section 58 (e) unless— | ||
(a) it has been determined, either in entitlement proceedings commenced by that person or in the proceedings in which the validity of the patent is in issue, that the patent should have been granted to him and not some other person; and | ||
(b) except where it has been so determined in entitlement proceedings, | ||
(i) the proceedings in which the validity of the patent is in issue are commenced before the end of the period of two years beginning on the date of the grant of the patent, or | ||
(ii) it is shown that any person registered as a proprietor of the patent knew at the time of the grant or of the transfer of the patent to him that he was not entitled to the patent. | ||
(3) In subsection (2) “entitlement proceedings”, in relation to a patent, means proceedings, whether by way of a reference under section 81 or otherwise, to determine the question whether a patent was granted to a person not entitled to it. | ||
(4) It is hereby declared that, for the purposes of this Act, the validity of a patent is not put in issue by reason only of the fact that the Controller considers its validity in order to decide whether or not to revoke it under section 60 . |