Summary
The post provides a detailed analysis of patent opposition and revocation in India, focusing on the procedural and substantive aspects under Indian patent law. It explains the opportunities for third parties to intervene through pre-grant and post-grant oppositions, and highlights the legal grounds for such actions. The role of the Controller, opposition board, and different stakeholders in the opposition and revocation process is discussed. The post also references a presentation originally delivered at NLSIU, Bangalore, offering further insights into the subject. Readers are encouraged to reach out for more information on the topic.
A patent right is a monopolistic right granted only after stringent scrutiny of the patent application. The grant affects third parties significantly, and the law accordingly provides them with opportunities to participate in the grant process by filing oppositions and requests for revocation.
An application may be opposed before grant and until a specified period after grant. Any person may oppose the grant of a patent after publication of the application; once the patent is granted, however, only an interested person or party may oppose. Pre-grant opposition is made by filing a representation; following recent amendments, this representation must be filed in the prescribed form. The opposition request is taken into consideration after an examination request has been made in respect of the concerned application.
The grounds available for opposition are numerous, ranging from wrongful obtainment of the right to non-fulfilment of patentability criteria and bad faith conduct before the patent office. These grounds are broadly similar for both pre-grant and post-grant opposition. The two forms of opposition are, however, handled differently: in a pre-grant representation, the opponent’s duty is to bring to the patent office any reason or evidence that the applicant is not entitled to the grant; in a post-grant opposition, the Controller is required to act upon the request and is assisted by an opposition board constituted for that purpose, which must analyse the relevant documents within a stipulated period. A granted patent may also be revoked at any time after grant, whether by the Controller, the High Court, or the Central Government, acting on its own motion or on the request of an interested party.
The following presentation, originally delivered to an audience at the National Law School of India University (NLSIU), Bangalore, illustrates the process, phases, and approaches involved in patent opposition and revocation.
The Presentation
Disclaimer
This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.