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 the most successful patent regimes lies a sensible framework that allows any interested third-party to challenge the validity of questionable patents. However, 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 the 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.