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15.2. The defence under Section 107 of the Patents Act in an infringement suit has a different legal and practical consequence from a revocation petition/ counter-claim under Section 64 of the Patents Act. Section 107 of the Patents Act does not entitle a defendant to seek revocation. At best, it only enables the defendant to seek a declaration that one or more claims are invalid and the patent is liable to be revoked. The reliefs sought in the present petition are substantially different from the reliefs sought in the written statement filed in the Himachal Suit. In this regard, reliance is placed on Section 151 of the Patents Act.

15.3. In a patent infringement suit where certain claims have been held invalid, the valid claims can still be asserted against third parties under Section 114 of the Patents Act.

15.4. A revocation petition is qua the entire patent and if the same is allowed, the patent is removed from the Register of Patents as if it never existed. On the other hand, the defence of invalidity under Section 107 of the Patents Act can be raised qua individual claims asserted in the suit. 15.5. Under the scheme of the Patents Act, Section 64 provides a stand-alone right which can be exercised whether a suit has been filed or not. There is no time limit prescribed for availing rights under Section 64 of the Patents Act.

19. Section 151 of the Patents Act is illustrative of the difference of the effect between the proceedings under Section 64 of the Patents Act and defence under Section 107 of the Patents Act. For ease of convenience, Section 151 of the Patents Act is set out below:

"Section 151. Transmission of orders of courts to Controller. -

(1) Every order of the High Court on a petition for revocation, including orders granting certificates of validity of any claim, shall be transmitted by the High Court to the Controller who shall cause an entry thereof and reference thereto to be made in the register.

Court of Himachal Pradesh, the petitioner ought to have filed a counter-claim in the said suit seeking revocation rather than pursuing the present petition. From a reading of the Patents Act, the position which emerges is that it is the choice of a party whether to file a revocation petition on a stand-alone basis under Section 64 of the Patents Act or file a counter claim in a pending suit. There is no limitation in the Patents Act to curtail the aforesaid choice of the party. There is nothing in the Patents Act to suggest that once a suit for infringement is filed, the defendant can only use the defence under Section 107 of the Patents Act or file a counter-claim in the suit. Hence, the petitioner has an independent stand-alone right under Section 64 of the Patents Act to file a revocation petition and any other interpretation would result in causing violence to the statute.