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Patent criticality
A granted patent can still be taken away
Once it is granted, is it safe?
Grant is a decision by an examining office on the material in front of it. Section 13(4) says expressly that it carries no warranty of validity - and there are four separate routes by which a granted Indian patent can be attacked.
The four routes
Pre-grant opposition before grant, by any person. Post-grant opposition by a person interested, within twelve months of publication of the grant. Revocation before a High Court on a petition by a person interested or the Central Government. And a counterclaim for revocation in an infringement suit - which is where it happens most often, because it is the cheapest moment for a defendant to raise it.
Compulsory licensing and government use provisions add further ways in which the exclusivity can be limited without the patent being cancelled at all.
Why it happens so often
An examiner searches for a limited time with limited resources. A defendant facing an injunction searches with a budget and a strong incentive, in every language, including non-patent literature the examiner never saw. Documents surface.
That is not a criticism of examination. It is the reason a patent's real strength is only tested when someone has a reason to attack it.
Sections 13(4), 25(1), 25(2), 64 and 107 of the Patents Act 1970.
Indian courts have repeatedly stated that no presumption of validity attaches to a granted patent, and that at the interlocutory stage the question is whether a credible challenge to validity exists.
Before enforcing, assume the other side will find better art than the examiner did, and go looking for it yourself first.
Telling investors or customers that a granted patent is unchallengeable.
The twelve-month window after publication of grant, when post-grant opposition is available.
For your most commercially important patent, commission the invalidity search your opponent would commission. Better to read it than to be shown it.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
Related
Post-grant opposition
An opposition filed by a person interested at any time after grant but before twelve months from the date of publication of the grant, decided by the Controller with…
Revocation
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A granted patent cannot be challenged.
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Not sure whether this applies to your invention?
The honest answer usually needs someone to look at your actual disclosure, your timeline and the prior art. That is a conversation, not an article.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.