India: Patent Opposition System
The idea behind patent opposition is to restrain wrongful patent grants and claims of the petty inventions. So, under Indian Patent act, depending upon the stage of the patent, there are two provisions when opposition may be filed –
• Pre-grant opposition
• Post-grant opposition
Criteria for Raising a Pre-grant or Post-grant opposition-
India signed the Trade Related Aspects Intellectual Property Rights (TRIPS) agreement in 2005. Since then, an “integrated” system of both pre-grant and post-grant opposition was introduced.
Grounds for Raising a Pre-grant opposition in India:
• Non-compliance of patentability requirements.
• Non-disclosure or wrongful disclosure of genetic resources or traditional knowledge
Grounds for Raising a Post-grant opposition in India:
• Anticipation by prior date, prior claiming and some prior publication or public use in India
• Invention anticipated with regard to traditional knowledge of any community, anywhere in the world.
• Obtaining the invention using unfair means
• Non patentable subject matter
• Insufficient description of the invention
• Obviousness and lack of inventive step
• Patent application not filed within 12 months of filing the first application in a convention country
• Non-disclosure of information as per the requirement or providing false information
• Nondisclosure/ wrong mention of source of biological material
Procedural Differences & Merits of Pre-Grant Opposition
Both pre-& post-grant opposition are governed by Section 25(1) of the Indian Patent Act. As such, one who raised a pre-grant opposition may subsequently also file a post grant opposition. However, the procedural differences between the two types of the opposition emphasizes that pre grant opposition is more cost effective and yield faster results. Moreover, unlike post-grant opposition, there is no fee stipulated for filing a pre-grant opposition.
Contrastingly, post-grant opposition process is a lengthy process and, in the case of bad patents, allows the patent holder to enjoy a wrongful monopoly. This is of particular concern in India, given the protracted nature of the judicial process.
The effective use of patent opposition process requires that an opponent (an inventor or an organization) has good knowledge about the grounds on which a patent can be revoked under the Indian Patent Act. But if there still are any apprehensions related to patent opposition processes, they can best be attended by IP analytics firms who offer prosecution monitoring and allied services. This strategy is most effective in protecting ones business interest.
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