Invalidating an epc

• Even if the invention falls into a patentable category the patent office may have made a mistake in judging novelty or inventive step in light of the state of the art that the patent search revealed.• 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.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.

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.

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.

This approach requires a great deal of resources ahead of time in the patent office (at the end of 2001 the European Patent Office had a staff of more than 5,000) but means that fewer invalid patents are likely to be granted.

Then there are patent offices which do not examine each application in depth but merely check that the right papers have been filed and fees paid.

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