A granted patent can not be presumed to be valid. The presumption of patent validity is very less when defendant shows substantial doubts on violation of procedures in patent grant and credible challenge on patentibility and also when patent is granted recently.
In a recent verdict given by Delhi high court, Judge denied request to grant interim injunction filed by Patentee. In this case, Patent No: 240893 (1683/MUMNP/2008); Assignee: Tenxc Wireless Inc, Title: ASYMMETRICAL BEAMS FOR SPECTRUM. EFFICIENCY.
In this case, defendant established credible challenge to patent on various aspect such as 1) Patentability of invention was not examined under section 3(d) and 3(f)?; 2) Whether claimed invention is novel and inventive or not based on certain prior art?; and 3) Patent is not granted by USPTO and EPO on the grounds of lack of novelty and inventive step.
Court made certain observation on the record of the patent office 1) Patent office did not examine the patent application under Section 12 and 13 of the act (Sections 12 and 13 of the Act are mandatory); 2) Patent Office did not examine whether the invention falls under any of the categories of non-patentable inventions under Sections 3 and 4 of the Act; 3) No valid publication under Section 11A as there was an error in the first publication; 4) A Canadian patent equivalent was not disclosed as required under section 8; 5) The patent was granted by a non-speaking order (????); 6) Patent Office has granted the patent to the plaintiffs in undue haste without following the due process of law; 7) patent is a recent one; 8) The findings of the ISR and IPRP are not binding on the Indian Patent Office.
The important challenge seems to be hastened grant of patent by violating of procedural steps of conducting search and examination on patent grant.