Section 64 of the Patents Act, 1970
Revocation of patents
Section 64 lists the grounds on which a granted Indian patent can be revoked by the High Court or by counterclaim.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
Nothing here replaces the statute. The official wording of the provision, together with any Gazette notification that applies to it, governs. This page only explains that material in ordinary language.
What this section says, in plain language
Grant is not the end of the story. An Indian patent can be taken away if it should never have been granted, or if the patentee broke rules that go to the integrity of the grant. Section 64 makes this possible. A patent may be revoked on a petition by any person interested or by the Central Government, or on a counterclaim in a suit for infringement. Since the Tribunals Reforms Act 2021 abolished the Intellectual Property Appellate Board, these petitions are heard by the High Court.
The grounds fall into broad families. The first is about the invention itself: that it was already claimed in an earlier Indian application with an earlier priority date; that it is not new because it was published, publicly known or publicly used in India before the priority date; that it is obvious; that it is not useful; or that it is not an invention within the meaning of the Act or is not patentable under it.
The second family is about entitlement and honesty. A patent may be revoked because the patentee was not entitled to it, because it was obtained wrongfully and against the rights of the petitioner, because it was obtained on a false suggestion or representation, or because leave to amend was obtained by fraud. Where the ground is wrongful obtaining, Section 52 allows the true and first inventor to be granted a patent in place of the revoked one.
The third family is about the specification itself: that it does not sufficiently and fairly describe the invention and how it is to be performed, or does not disclose the best method known to the applicant; that the claims are not clearly and succinctly defined or are not fairly based on the disclosure; or that the invention was secretly used in India before the priority date.
The fourth family is about statutory duties. A patent may be revoked for failure to furnish the information required by Section 8 about foreign applications, or for furnishing false information; for contravening a secrecy direction under Section 35; for filing abroad without the permission required by Section 39; and for failing to disclose, or wrongly stating, the source and geographical origin of biological material. Anticipation by knowledge available within any local or indigenous community is also a ground, and it deliberately protects traditional knowledge.
Revocation is not the only way to attack a patent. Opposition under Section 25 covers overlapping ground before the Controller, Section 66 allows revocation in the public interest, and Section 85 allows the Controller to revoke for non-working. Choosing among these routes depends on timing, cost, evidence and whether the challenger is already facing an infringement claim.
Why this section matters
Any person interested in challenging a patent, defendants in infringement suits, patentees assessing risk, and investors valuing a patent portfolio.
At any time while the patent is in force, and in particular as soon as an infringement claim is threatened or filed.
A defined list of grounds for cancelling a granted patent, and two procedural routes: a petition to the High Court and a counterclaim in an infringement suit.
A patentee who ignores these grounds may build a business on a patent that cannot survive scrutiny, and a defendant who does not counterclaim may lose the best answer available.
How it works in practice
A counterclaim that ends the case
Sundara Fine Chemicals Pvt Ltd sues a Kolkata formulator for infringing its patent on a stabilised herbicide blend. The formulator does not simply deny infringement. It files a counterclaim for revocation under Section 64, raising three grounds. First, a foreign family member of the same invention had been prosecuted abroad and the details required under Section 8 were never fully furnished to the Indian Patent Office. Second, the complete specification describes only one ratio of stabiliser and gives no guidance for the wide range claimed, so the claims are not fairly based on the disclosure. Third, an earlier Indian application by an unrelated party with an earlier priority date claimed the same blend. Each ground is separate, and any one of them can end the patent. The court hears the infringement claim and the counterclaim together. This is why patentees should audit Section 8 compliance and claim support long before they contemplate suing anyone.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Revocation may be sought by any person interested, by the Central Government, or by counterclaim in an infringement suit.
- Petitions are heard by the High Court following the abolition of the Appellate Board in 2021.
- Grounds include lack of novelty, lack of inventive step, non-patentable subject matter and prior claiming.
- Grounds also include wrongful obtaining, false suggestion, and fraud in obtaining leave to amend.
- Insufficient description, unclear or unsupported claims and failure to disclose the best method are separate grounds.
- Non-compliance with Section 8, Section 35 secrecy directions and Section 39 foreign filing permission can each destroy a patent.
- Failure to disclose the source or geographical origin of biological material, and anticipation by traditional knowledge, are express grounds.
Common mistakes and misunderstandings
- Assuming a granted patent is presumed valid. Indian law contains no such presumption, and grant is not evidence of validity.
- Treating Section 8 as a paperwork formality. Failure to furnish the required information about foreign applications is a standalone revocation ground.
- Thinking only the patentee's competitors can act. The Central Government may also petition, and a defendant can counterclaim.
- Believing that surviving pre-grant or post-grant opposition immunises a patent. Revocation grounds can still be raised in court.
- Overlooking the biological material and traditional knowledge grounds, which matter greatly for agricultural, herbal and food technology patents.
Connected provisions
- ActSection 25Opposition to the patent
- ActSection 8Information and undertaking regarding foreign applications
- ActSection 52Grant of patent to true and first inventor where it has been obtained by another in fraud of him
- ActSection 66Revocation of patent in public interest
- ActSection 104Jurisdiction
- ActSection 107Defences, etc., in suits for infringement
This page explains a section of the Patents Act, 1970. The working detail that goes with it lives in the Patents Rules, 2003. The connected rules appear in their own block so that the statutory duty and the procedural steps stay clearly distinguishable when you cite either one.
Forms, deadlines and fees
- Section 64 does not fix a limitation period, so a revocation petition can generally be filed at any time while the patent is in force.
- A counterclaim for revocation must be raised in the infringement suit itself, within the time the court allows for filing the written statement.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
The official fee for anything described on this page is set out in the First Schedule to the Patents Rules. It is not the same for every applicant, and it is not the same for online and physical filing, which is why no amount is stated here. How Indian patent fees work.
Amendment history
What changed in this provision, newest first. Read the footnotes in the official consolidated text for the full record.
- 2021The Tribunals Reforms Act, 2021The words giving the Appellate Board power to revoke were removed. A revocation petition goes to the High Court, and revocation may still be sought by counter-claim in an infringement suit.
- 2005The Patents (Amendment) Act, 2005The appellate body then in existence was added as a forum for revocation petitions, alongside the High Court's role on counter-claims.
- 2002The Patents (Amendment) Act, 2002The grounds were reworked. Some provisos were dropped, the treatment of secret prior use was widened, and grounds were added for non-disclosure or wrong disclosure of the source of biological material and for anticipation by local or indigenous knowledge.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries
(1979) 2 SCC 511; AIR 1982 SC 1444 · Judgment source ↗
Question before the courtWhether an improved method and device for making metal utensils was a patentable invention or only an obvious workshop change.
HeldThe Court held the patent invalid. It said novelty alone is not enough: the claimed advance must not be obvious to a person skilled in the relevant trade at the priority date. The test asks whether such a person, knowing the prior art, would treat the step as plain and easy rather than inventive. A mere putting together of known parts, or an ordinary improvement any competent workman would reach, does not qualify. The Court also warned against reading prior art with hindsight once the invention is already known.
Monsanto Technology LLC & Others v. Nuziveedu Seeds Ltd. & Others
Civil Appeal Nos. 4616-4617 of 2018 (Supreme Court of India, judgment dated 8 January 2019) · Judgment source ↗
Question before the courtWhether an appellate court could decide at the interim stage that a biotechnology patent was excluded from patentability and revoke it.
HeldThe Court set aside the appellate order and restored the trial judge's interim arrangement, sending the suit back for trial. It held that a challenge of this kind rests on technical material and expert evidence, so it cannot be resolved summarily while an injunction application is being argued. The appellate court should have limited itself to whether the interim order was sound. All questions of fact and law about the patent, including the objection based on the exclusion for plants and biological processes, were expressly left open.
F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd.
2015 SCC OnLine Del 13619; MIPR 2016 (1) 1 (RFA(OS) 92/2012 and RFA(OS) 103/2012)
Question before the courtWhether a generic company's polymorph product infringed a patent on a cancer compound, and whether that patent was invalid.
HeldThe Division Bench held the patent valid and infringed. It rejected the attacks based on obviousness, insufficient disclosure and the bar on new forms, reasoning that the new form objection was directed at the defendant's own later form rather than at the patented compound. Infringement was decided by comparing the defendant's product with the claims, not with the patentee's marketed product. Because the patent was close to the end of its term the Court declined a permanent injunction and instead directed an inquiry into damages or accounts.
Dr. Aloys Wobben & Anr. v. Yogesh Mehra & Others
(2014) 15 SCC 360; AIR 2014 SC 2210 (Civil Appeal No. 6718 of 2013) · Judgment source ↗
Question before the courtWhether the same person may challenge a patent by post-grant opposition, by a revocation petition and by a counter-claim all at once.
HeldThe Court held that these routes are alternatives rather than additions. Once a person has pursued a post-grant opposition to its conclusion, the same person cannot then run a revocation petition on the same grounds. A person who files a revocation petition before an infringement suit begins cannot later seek revocation by counter-claim in that suit, and a person who files a counter-claim cannot afterwards start a separate revocation petition. The word or in the revocation provision was read as offering a choice.
AstraZeneca AB & Anr. v. Intas Pharmaceuticals Ltd. & Others
FAO(OS)(COMM) 139/2020 and connected appeals (Delhi High Court, judgment dated 20 July 2021)
Question before the courtWhether a patentee holding both an earlier genus patent and a later species patent over the same molecule could obtain an interim injunction against generic makers.
HeldThe Division Bench refused interim relief and dismissed the appeals. It reasoned that a patentee cannot treat a molecule as covered and disclosed by an earlier broad claim for one purpose while presenting the later patent as a separate invention for another. If the compound already fell within the earlier genus, the later claim raised a serious question about whether a further inventive step existed. With validity credibly in doubt and cheaper alternatives already on the market, the balance was against restraining the generic makers.
Citation details are being confirmed against an official report before this summary is treated as verified.
Maj. (Retd.) Sukesh Behl & Anr. v. Koninklijke Philips Electronics N.V.
FAO(OS) 16/2014 (Delhi High Court, judgment dated 7 November 2014)
Question before the courtWhether a failure to file complete information about corresponding foreign applications leads automatically to revocation of the patent.
HeldThe Division Bench refused to revoke the patent at that stage. It read the word may in the revocation provision as leaving the court a discretion, so a shortfall in the foreign filing information does not by itself end a patent. The court must ask whether the omission was a deliberate suppression of material information or an inadvertent or clerical lapse, and whether what was left out actually mattered. Because that question depends on evidence, it could not be decided on affidavits and was left for trial.
Citation details are being confirmed against an official report before this summary is treated as verified.
Telefonaktiebolaget LM Ericsson (PUBL) v. Lava International Ltd.
CS(COMM) 65/2016; neutral citation 2024:DHC:2698 · Judgment source ↗
Question before the courtWhether patents said to be essential to telecommunications standards were valid and infringed, and how compensation should be worked out.
HeldAfter a full trial the Court upheld the asserted patents, accepted that they were essential to the standards relied on, and found that they had been infringed. The validity attacks, including those based on the statutory exclusions, were rejected. On remedies the Court awarded damages worked out as a royalty applied to the relevant turnover of the implementer, and it took account of the parties' conduct across years of licence discussions in concluding that the implementer had not behaved as a willing licensee.
Case notes are written in our own words from the judgment and are published only after legal review. They are not advice and not a prediction about any other matter. All case notes.
Questions people ask about Section 64
Who can file a revocation petition in India?
Any person interested, or the Central Government, may petition the High Court for revocation of a patent. A person interested is someone with a real stake, typically a competitor working in the same field, a research organisation, or an industry body, rather than a stranger with no connection to the technology. Revocation may also be sought by way of counterclaim by a defendant in a suit for infringement of the patent, which is the most common route in practice.
What are the main grounds for revoking a patent in India?
They include prior claiming in an earlier Indian application, lack of novelty, lack of inventive step, lack of utility, subject matter that is not an invention or is not patentable under the Act, wrongful obtaining, false suggestion or representation, insufficient or unfair description, failure to disclose the best method, claims that are unclear or not fairly based, secret prior use, failure to comply with Section 8, breach of a secrecy direction, filing abroad without permission under Section 39, and non-disclosure or wrong disclosure of the source of biological material.
Is a granted Indian patent presumed to be valid?
No. Indian law does not attach a presumption of validity to a granted patent, and the Act says in several places that grant is not evidence of validity. A patent must be able to stand on its own merits whenever it is challenged. This is one reason why serious pre-filing prior art searching, careful claim drafting with fallback positions, and strict compliance with disclosure duties are worth the investment. It is also why defendants routinely counterclaim for revocation rather than only denying infringement.
Where do revocation petitions go after the IPAB was abolished?
To the High Court. The Tribunals Reforms Act 2021 abolished the Intellectual Property Appellate Board and transferred its patent jurisdiction to the High Courts. Several High Courts, including Delhi and Madras, have created dedicated intellectual property divisions with their own procedural rules for these matters. Older articles and judgments that refer to filing revocation petitions before the Appellate Board should be read with that change in mind.
Should I file an opposition or a revocation petition?
It depends on timing and objective. Pre-grant opposition under Section 25(1) is available before grant and is inexpensive. Post-grant opposition under Section 25(2) is available to a person interested within twelve months of publication of grant and is decided by the Controller with an Opposition Board. Revocation under Section 64 goes to the High Court, has no such window, and is the route most often used defensively by a party already facing an infringement claim. Cost, evidence and speed usually decide the choice.
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