IP 2.4 NULLITY OF PATENTS
Section 9(1) A person with locus standi (sufficiently affected/concerned) may petition that the patent be declared a nullity:
- Where the subject of the patent is not patentable under Section 1 of the act (newness, inventive activity and capable of industrial application).
- Where description of the invention is not adequate in accordance with Section 3(2).
- If a patent has already been granted in respect of the same invention.
Evidence may be required to establish allegation and the patentee (patent holder) must be heard-Section 9(5) PDA. Then the court decides based on the facts and circumstance of the case and the state of affairs at the time the case is instituted. Where the patent has been declared null, the registrar would register and publish such.