This post was published on July 21, 2014.
The subject of today’s topic would probably leave a patent applicant feeling a bit like the reigns are slipping. A patent is not a piece of cake to acquire. The right owner of the invention be it an inventor or an applicant has to prove themselves beyond any doubt. It is the basic right of every individual to oppose the grant of any patent, in cases where such a grant would seem detrimental to a third party. Hence, it would be a justifiable opportunity for third parties to intervene in the procedure of patent grant.
Under the Indian Patent Law, Opposition can be made twice during the life of a patent application. First is the Pre-grant representation under section 25(1) wherein any person may challenge the application for grant of a patent. Pre-grant opposition acts as a defensive shield to confirm the validity of patent applications before patents are granted. Post grant opposition under section 25(2) may be made only by any person interested at any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of patent.
So who are these interested persons? Section 2(1)(t) of the Indian Patent Act defines person interested as including a person engaged in, or in promoting, research in the same filed as that to which the invention relates. In addition, interested person may also include any organization that has a manufacturing or a trading/financial interest in goods related to the patented product.
Proceedings for Pre-grant representation and Post grant opposition are more or less the same, and it is mandatory to make a request for pre grant representation in the new, Form 7(A). and request for post grant opposition is made in Form 7.Grounds for opposition are aplenty, ranging from wrongful obtainment of the invention to the non-fulfillment of patentability criteria, to approaching the patent office in bad faith.
In case of pre-grant representation, the Controller exercises the discretionary power to review the request and act accordingly and such representation is considered only after the Request for Examination is filed. However, in case of post grant opposition, the Controller has to promptly and strictly act on the request made and he will be assisted in this regard by the Opposition Board.
A granted patent can be cancelled in 2 ways: a patentee himself can surrender his patent; or the patent can be revoked. The patent can be revoked upon petition from any person interested or of the Central Government or on a counter claim in an infringement suit by the High Court or on the basis of the grounds mentioned in section 64. Detailed information on revocation will be provided to our Readers in upcoming posts coming.