Challenging the Validity of Patents: Stepping in Line with EPO and US Jurisprudence

Abstract

As a matter of law patents are granted with a presumption of validity. However, with the public interest considered as an essential basis for the granting of exclusive rights, subject only to procedural fairness, a competent national or regional authority may revoke or invalidate any patent that fails to comply with formal patentability requirements as grounded in law. Remarkably, at the heart of most successful patent regimes lies a sensible framework that allows any interested third-party to challenge the validity of questionable patents except that these instruments are not found within the least developed patent regimes. Importantly, given the conceptual reasoning that invalidly granted patents stand to prejudice the overriding public interest, a principle centrally established in the patent system, this article examines the extent to which states can implement legislative instruments on patent opposition to mitigate the potential consequences of granting questionable patents. Therefore, drawing on the jurisprudence containing substantive law and procedural requirements of patent opposition proceedings within the EPO and USPTO, the author argues that citizens in whose interests' patents are granted have the right to participate in the patent system and to check that only inventions that deserve exclusive rights are granted patents. The conclusion is that, if WTO members without patent opposition mechanisms were to explore and strengthen their regimes, citizens, competitors and other interest groups would be able to detect and invoke key provisions to challenge the granting of invalid patents, while maintaining that the patent system is untainted and free from questionable patent claims.

Using Machine Learning With Technological Innovation Factors to Predict the Transferability of University Patents

“…Previous studies indicate that patent quality is considered the main factor affecting patent transfer [43], [44]. However, some high-quality patents are not necessarily easy to transfer [45], [46], and high-quality patents do not necessarily mean high invention quality [47], suggesting there are other factors that affect patent transferability. Technological innovation factor has been shown to have a certain impact on the patent conversion rate at a theoretical level, but no studies have quantified the impact of technological innovation factors on patent transferability empirically.…”

Strategic use of patent opposition safeguard to improve equitable access to innovative health technologies: A case study of CAR T-cell therapy Kymriah

“…This multilateral treaty did not provide any specific guidelines on patent opposition proceedings. It only prescribed some general procedural requirements that may be applicable to opposition procedures (Manu, 2017). Art.…”

India’s Distinct but Opposing Patent Model Is Under Pressure: Prospects and Challenges in the Global Arena

“…The TRIPS Agreement did not provide any specific guidelines on patent opposition proceedings. This treaty, however, prescribed some general procedural requirements that may be applicable to opposition procedures (Manu, 2017). Article 62(2) of the TRIPS Agreement (1995) requires the Member States to make sure that the procedures for grant or registration of IP rights do not cause 'unwarranted curtailment of the period of protection' (Abbas, 2020a;Lawson, 2004).…”