3. RevocationUp one level
There are two ways of applying to have a patent revoked:
- under section 42 (Revocation of a patent by the Commissioner); or
- under section 41 (revocation of a patent by the Court).
(A) Revocation by the commissioner (section 42):
Within 12 months of the granting of a patent any person interested who did not oppose the grant of the patent can apply to the Commissioner to have the patent revoked using a patents form 45. An application to the Commissioner for revocation of a patent may be made on the same grounds as are available for opposing a patent (section 21(1)), and which are outlined above. The revocation process is the same as the procedure that applies to opposition.
A revocation action before the Commissioner may not be launched if there is an action for infringement or revocation proceeding pending in any court.
No fee is payable on a revocation application. A hearing fee will be payable if a hearing is requested.
After the application to revoke the patent has been filed, the Commissioner will inform the patentee the revocation proceedings have commenced.
If the Commissioner finds that any of the grounds for revocation have been made out then either the patent will be revoked or the Commissioner may allow the complete specification to be amended to his satisfaction.