Patents – Restoration Application When To Precede Post-Grant Revocation

The Calcutta High Court has set aside an order revoking a patent, holding that the Controller could not decide on a post-grant revocation petition while the patentee’s restoration application was still pending. Controller’s objection that the statute does not provide for any embargo in taking up the revocation application during the pendency of the restoration application was thus rejected.

The patent had lapsed due to non-payment of renewal fees. Pursuant to an order of the High Court of Orissa, the company filed a restoration application, which was directed to be considered within two months. However, before deciding the restoration application, the Controller revoked the patent on a post-grant challenge filed by a third party.