Delhi HC Interprets the Timeline for Pre-Grant Representation of a Patent
60. It must be understood that prior to the amendment in Section 25 in the year 2005, even a pre-grant opposition could be filed only by any person „interested‟. It is only after the amendment in 2005 that any person can now file the pre-grant opposition. The Act, therefore, makes a distinction between an opposer at the stage of pre-grant opposition, who could be „any‟ person, and the opposer at the post-grant stage, who could only be a „person interested‟. The legislative intent is that the right to file a post-grant opposition under Section 25 (2) is restricted to any person interested. The fact that the restriction of the time to file a pre- grant which results from the interpretation given by this court may impact the two classes of pre-grant opposers differently is consistent with the above distinction.
61. While restricting the time period for filing a pre-grant opposition to the time when such patent is granted may inconvenience “any person” who wishes to file a pre-grant opposition, it is certainly not going to inconvenience a “person interested”. Even if such „interested‟ person misses the bus at the pre-grant stage, the right of such person to oppose at the post-grant stage is preserved under Section 25 (2) of the Act. Therefore, the interpretation placed by this Court certainly cannot prejudice a person interested in opposing the grant of patent. As regards any person, other than a person interested, the legislative intent appears to restrict the scope of such person confined to the stage of pre-grant. It would be necessary, therefore, for such person (who may not be an „interested‟ person) to be vigilant and to watch out for the date of advertisement of the complete specification and understand that the limitation for filing a pre-grant opposition begins to run from that date onwards.