Patent Opposition and Revocation: A Presentation
A patent right is a monopolistic right that is granted only after stringent scrutiny of the patent application. The right is not enjoyed by a patent applicant/patentee unless it is proved beyond reasonable doubt that this proprietorship is well deserved of the invention. Since this grant of patent right affects third parties monumentally, they are given an opportunity to participate and intervene in the grant process by filing oppositions and request for revocations.
An application can be opposed before grant as well as until one year after grant. Any person can oppose the grant of patent 6 months after publication of the application, however once the application is granted, only an interested person/party can oppose the grant of patent. Previously, there was no specific format for filing a pre-grant representation, however in light of the recent amendments, it is mandatory to make this request in the new Form 7 (A). The opposition request is taken into consideration after a request for examination for the concerned application is made.
Grounds to oppose are numerous varying from wrongful obtainment of right to non-fulfillment of patentability criteria, to approaching the patent office in bad faith. These grounds are similar for post-grant opposition. However, the requests for pre-grant and post grant oppositions are handled in a different manner. In pre-grant representation, the duty of the opponent is to inform the patent office of any reason known to him/her or any belief that can be substantiated with evidence that the patent applicant is not entitled for the grant of patent. In case of pre-grant representation, the Controller exercises the discretionary power to review the request and act accordingly, however in case of post grant opposition, the Controller has to promptly and strictly act upon the request made and he will be assisted in this regard by the opposition board. This board is constituted by the Controller and is under a time bound duty to analyze the documents received from the opponent and from the patentee. A granted patent can be revoked any time after grant by the Controller or High Court or the Central government, suo moto, or on the request of an interested person/party.
To demonstrate the process, various phases and approaches of patent opposition and revocation, a presentation is provided herein, first presented to an audience at NLSIU, Bangalore. Please feel at ease to write to us for more information.