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Grounds for invalidating a patent

This is the case in the European Patent Office, the United States Patent Office, the Japanese Patent Office and the Chinese Patent Office as well as many others (see p.

18 for some patents that the US office has granted, including a Santa Claus detector).

We discovered cases where a patent had been granted quickly by OAPI, for example, but the corresponding patent in EPO had either been limited compared to the OAPI patent or even refused altogether.

The particular way in which the validity of a patent can be challenged is determined by national law. Article 32 of the TRIPS Agreement requires an opportunity for judicial review of any decision to revoke or forfeit a patent.

Also, a closed group of companies, including generics companies, cannot be relied upon to act in the best interests of public health.

When it is fairly certain that the patent is invalid, a patent can be challenged in a different way, for example, by going ahead and manufacturing or using the product anyway, and waiting for the patent holder to sue. Patent holders have to take action if they wish to protect their rights.

The USPTO has issued patents for such things as a Santa Claus detector (US patent 5523741), a peanut butter sandwich (US patent 6004596) and a method of swinging sideways on a swing (US patent 6368227).

But it also means that patents will be granted which are not valid under the national law. Obviously this approach only works well when there is a reasonable chance that a patent actually will be challenged in court.

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• Documents (or something else) describing the invention dating before the priority date may turn up, in which case the invention might no longer be novel or inventive.If only competitor pharmaceutical companies were allowed the legal standing to challenge a pharmaceutical patent, then many other relevant entities such as individuals and nongovernmental organizations (NGOs) would be rendered powerless to challenge. 20) recently considered this question and found that an AIDS treatment NGO and two individuals living with HIV/AIDS did have the right to challenge a patent granted on an HIV drug.Any person should be given the legal standing to challenge a pharmaceutical patent given the life-ordeath consequences.It might be disastrous if a country where there is little likelihood of anyone challenging the patent uses a registration system.If the patent application is rejected in, for example, EPO, there might be a good case to invalidate the patent in a "registration only" country, to the extent that the law is the same.As noted above, a country doesn't necessarily have to examine a patent application before it grants a patent.The TRIPS Agreement does not force countries to apply the patentability tests before a patent is granted. Some countries have decided to have a thorough examination of any patent application before a patent is granted.For instance, GSK claimed to have various patents protecting its antiretroviral medicine Combivir® in Ghana, in order to stop a drug distributor from importing a generic version of this medicine in 2000.Investigations revealed that in fact three of the four GSK patents should not have been granted in the first place, as pharmaceutical inventions were not patentable under the previous Patent Law of Ghana.The fact that such a person, for example working in a generic manufacturing company, can prove that it is not possible to carry out the invention on the basis of the information provided in the patent document could also be a motive for revoking the patent.In some cases, challenging the validity of a granted patent may be a good way to test the law of a country on the issue of patentability.


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