In a case involving revocation application before IPAB and infringement suit before the High Court, Delhi High Court has held that effect of taking defence under Section 107(1) of the Patents Act or of making a Counter claim under Section 64 would be same.
Observing that IPAB was not in position to grant relief as patent term had expired, and that proceedings in Civil Court will have precedence, the High Court allowed proceedings in the suit to continue. It permitted the defendant to withdraw IPAB proceedings and to file Counter claim in present suit.
The Court in the case Unilin Beheer v. Balaji Action Buildwell noted that Section 107 of the Patents Act, unlike the Trademarks Act, confers concurrent jurisdiction in the IPAB and the Civil Court to grant the relief of revocation.
It was held that even if the analogy of Section 10 of CPC were to apply, it would be more convenient and expedient that the proceedings in this suit continue, rather than be stayed during the pendency of the revocation proceedings before the IPAB.