Home Intellectual Property Patent Opposition

Patent Opposition

A patent opposition is, at its core, a legal power created by the Patent Act that makes it possible for everyone to protest the granting of a patent. Patent oppositions can be submitted or made in Opposition to an approved patent application or a certified invention patent.

1,64,739 Happy Customers

Get Free Consultation

99.9% customers satisfaction guaranteed.
No Hidden charges

Overview of Patent Opposition

Intellectual property rights (IPR) include patents, which are basically the exclusive rights granted to the original author of a novel product or process that provides a fresh approach to doing something or identifies a technical solution to an old problem. Furthermore, a patent grants the owner of the invention the exclusive right to manufacture, market, and reproduce it. Consequently, only inventions that uphold the exclusive right and adhere to the patentability requirements are granted a patent, which is crucial. The weak or small invention claim and illegal patent acquisition are the two main goals of patent opposition processes. A patent opposition is, at its core, a legal power created by the Patent Act that makes it possible for everyone to protest the granting of a patent. Patent oppositions can be submitted or made in Opposition to an approved patent application or a certified invention patent.

What is a Patent?

An exclusive right given to the author of a new process or product that provides a fresh approach to an old problem or identifies a new technical solution is called a patent.

What is Opposition to a Patent?

Public figures and entities of all sizes have the opportunity to compete with granted patents or pending patent applications through the process of patent opposition. When employed properly, patent opposition can be a very useful weapon for stopping the issuance of pointless patents.

While opposing a patent is the most economical course of action, revocation of the Patent and other litigation methods can be applied in order to prevent the issuance of meaningless patents.

If a patent survives the opposition process, its value rises drastically. India's patent system is distinct in that it provides two alternative avenues for patent objection at two distinct stages of patent prosecution.

Legal Clauses Relating to Patent's Opposition

Section 25 of the Indian Patents Act of 1970 addresses Patent Opposition. Third parties have the right to submit oppositions against any kind of Patent under the Act. The statute stipulates a specific time limit.

The public can challenge granted and unresolved patent applications under Indian patent law by filing an objection with the Indian Patent Office. There are two different types of patent opposition tactics available under Indian law. An opposition is filed as a post-grant opposition after the Patent has been given out, but an opposition is submitted as a pre-grant opposition before the Patent is given.

The Controller General of Patents is the person before whom opposition proceedings are held in India. The main benefits of opposing a patent application with the Indian Patent Office include a tightly time-bound approach that is less expensive and time-consuming than litigation.

Section 25(1) of the Act addresses the Pre-grant Opposition, while Section 25(2) addresses the post-grant Opposition.

Pre-Grant Opposition

Pre-grant Opposition to patents is covered under Section 25(1) of the Patent (Amendment) Act of 2005. This clause permits anyone, any way of government, or a third party to contest a patent application and notify the Controller of Patents of their intention to oppose the Patent in writing after the application has been published but before the Patent is indeed granted.

Before patents are awarded to applicants, pre-grant Opposition functions as a protective barrier to verify the applications' legitimacy. Additionally, a Pre-grant opposition includes a business-like approach, with opponents viewing it as a fantastic chance to challenge the unconstitutional protective rights.

The reasons mentioned below under section 25(1)(a) to (k) of the Patent Amendment Act, 2005 for Pre-grant Opposition:

The Act of fraudulently getting an invention,
Anticipation by an earlier release prior to its due date, with earlier claims in India,
Public usage or earlier understanding in India,
Lack of innovative steps and obviousness,
Non-patentable matter, and
Inadequate invention description,
Failure to make information public as mandated by law or
The applicant's provision of materially incorrect information;
Failure to file a patent application within a year of submitting the first one in a country party to a convention,
Failure to reveal or make evident the origin of biological material,
Anticipation of invention in relation to a common understanding of any international society.

Post-Grant Opposition

A post-grant opposition may be filed whenever after the patent grant, provided that it is filed no later than one year from the day the patent award was published. According to this clause, anyone with an interest may object to the Controller in the way that is shown by section 25 of the Patent (Amendment) Act 2005 on any of the criteria mentioned.

The Indian Patent Act's Section 2(1)(t) defines "person interested" as a single person undertaking or supporting research in the identical field to the invention. Any company with a manufacturing, trade, or financial stake in the goods associated with the patented good may also be considered an interested party.

A post-grant opposition may be submitted for a variety of reasons listed in section 25(2) of the Act, much like the pre-grant Opposition. It is interesting to note that many of the reasons are the same as those who must file a pre-grant opposition.

Grounds for Opposition

There are similar grounds for Opposition in both the pre-and post-grant stages listed in the Act, to which Opposition may be articulated.

Among them are:

The invention was obtained improperly;
There was anticipation based on previous work in India or abroad;
There was anticipation based on earlier claims made in India;
There was anticipation based on earlier public knowledge or use in India;
There was obviousness or a lack of creative steps based on earlier domestic publications or internationally, or earlier use by the Indian public;
There was no invention, or it was not patentable under the Act;
The invention was inadequately described; there was false information provided;
Failure to disclose the source and place of origin or to misrepresent the biological material used for the invention;
Taking into account customary knowledge of a community (oral or otherwise) anywhere in the world and
Failure to file a convention application within a year of filing the first application in a convention country.

Process of Patent Opposition

Process of Pre-Grant Opposition

The pre-grant opposition process is outlined in Rule 55 of the Patents Rule, 2003. Anybody may object to the Patent being granted beforehand by submitting a pre-grant opposition to the Controller on any of the previously listed grounds, whereby:

Form 7(A) must be used for opposition representations, which can be submitted at the relevant office with a statement and supporting documentation. Both the notification and representation will be sent to the applicant by the Controller.
Once the representation is acquired, the applicant has the option, if desired, to respond to the representation three months after the notice date.
After receiving the applicant's response, the Controller has a month to decide whether or not to accept the objection or representation or demand that the entire specification be changed.

Process of Post-Grant Opposition

Board of Opposition

The Opposition Board will be directed to assess the Opposition submitted by the opponent by the Controller of Patents. There are three members on the Opposition Board in total. The Controller of Patent designates one member to function as the Opposition Board's chair among the other members. The Board of objection is often made up of patent examiners, with the exception of the examiner who handled the patent application that the objection was filed against.

Document Filing

The opponent must file a written statement of Opposition and supporting documentation in several copies. The opposing party have to mention in writing the following:

The type of interest,
Any supporting documentation,
The facts supporting the case, and
The desired resolution.

The Patentee, if it desires to contest, must provide a formal statement to the patent office within two months of receiving the notice of Opposition, including any relevant documentation that is available and a copy to the opponent. The Patent is presumed to be revoked if the Patentee does not protest this in two months.

The opponent may then file in less than a month to the patent office receiving the evidence of response, getting the Patentee's reply statement.

If further evidence is needed, it can only be submitted with the Controller's permission.

Hearing

Following receipt of the recommendation from the opposing Board, the Controller schedules a time and date for hearing from each party. Board members in Opposition are also present during the hearing.

Considering the recommendation of the opposition board, the Controller issues an order to either keep, amend, or revoke the Patent after hearing from both parties, or without a hearing if none of them desires to be heard.

Why Choose Kanakkupillai?

Kanakkupillai is a leading legal consulting company in India that provides a wide variety of services related to patent registration. Protect your brand and register your Patent with ease. Secure your business identity with Kanakkupillai's patent services. Let us handle your patent registration while you focus on your business. We have the most reputable experts for hassle-free patent registration. Register your Patent virtually, anytime, anywhere with Kanakkupillai. If you want to file a Patent Opposition, don't hesitate to contact us immediately.

Frequently Asked Questions

What is patent opposition? +

Patent opposition refers to the Act of raising objections against a patent grant. A patent's shortcomings may be brought up against both a granted both a valid standard patent and a patent for innovation. In essence, a third party can contest the legality of a granted patent through patent opposition.

How is an opposition to a patent found? +

The patent office usually increases and notifies the patent applicant of a post-grant opposition. Therefore, the applicant is still able to submit a response in which they defend their patent application.

Which two kinds of Opposition to patents are there? +

Pre-grant and post-grant oppositions to patents are the two main divisions. For example, following the application is public, third parties may contest a patent grant immediately through pre-grant oppositions. Though a notice of Opposition in favour of a post-grant opposition may be filed in a year following the patent date of publication of the award.

When is it possible to revoke an Indian patent? +

A patent may be revoked if its usage puts the public or the state at risk.

When must the opposition representation be submitted earlier than the grant? +

Within six months of the date of publication of the application, the representation for pre-grant Opposition may be submitted on Form 7A.

How long does it take to file the post-grant opposition representation? +

A 12-month period is allotted for filing the post-grant opposition representation.

Who is able to oppose patents? +

Any interested party may submit a Post Grant Opposition on the suitable justifications within a year following the date of patent publication, in accordance with section 25(2) of the Patent Act.