Opposition of a Patent

February 28, 2022

Definition of a Patent:-

A patent is a collection of exclusive rights awarded for a short period following a successful application procedure over any item, substance, technique, or process that is novel, useful and is an invention. It is a properly registered right provided by the nation of registration, similar to trade marks. The patent owner gains monopoly rights, allowing him to prohibit others from commercially exploiting the innovation without his permission. These rights are provided in exchange for full disclosure of the invention’s technical ‘know how,’ so that others can learn from it and society can be encouraged to be more creative and innovative. The content of the invention must be disclosed by a patent application, and the information must be made public. As a result, some inventors make the commercial choice not to publish their patents, preferring instead to keep their innovation a trade secret.

Patent Opposition:-

In patent regimes, several nations include mechanisms for opposition. Third parties can use opposition mechanisms to challenge the issuance of a patent within a particular time limit set by the applicable legislation. Patent opposition is a privilege granted by the Patent Act that allows anybody to object to the issuance of a patent. An accepted standard patent application or a certified innovation patent can be challenged. At least one of the reasons for opposition listed in the applicable statute must be claimed by the opponent. Patent opposition methods are intertwined with the patent granting process. An objection can be filed before the issuance of a patent (pre-grant opposition) or after the grant of a patent (post-grant opposition) (post-grant opposition).

Section 55 of the Patent Rules, 2003 says that All submissions for objection of a patent must be made to the Controller General of Patents in accordance with Form 7A of the Act. The Indian legislature purposefully included a clause that prevents patents from being granted until six months have passed after the date of publication. Third parties with a desire to challenge the patent because they will have a reasonable opportunity to do so. If the examiner considers the reasons presented in the statement of opposition are unsound, he will reject it by issuing a speaking order. The Examiner, on the other hand, will send a notification to the applicant if the assertion is deemed to be true. After that, the candidate must provide his own statement and submit the evidence within 3 months from the date of notice.

In their patent regimes, several nations include mechanisms for opposition. Opposition systems, strictly speaking, give third parties the chance to challenge the award of a patent within the time limits set by the applicable legislation. At least one of the reasons for opposition listed in the applicable statute must be claimed by the opponent. Patent opposition methods are intertwined with the patent granting process. An objection can be filed before to the issuance of a patent (pre-grant opposition) or after the grant of a patent (post-grant opposition)

Section 55 speaks about the Opposition Proceedings to be granted of Patents which are:-

Section 55(1) says that a statement and evidence, if any, in support of the representation, as well as a request for hearing, should be filed in Form 7(A) at the relevant office with a copy to the applicant, and shall contain a statement and evidence, if any, in support of the representation.
Section 55(1A) says that notwithstanding sub-rule (1), no patent shall be awarded until the six-month term from the date of publication of the application under section 11A has expired.
Section 55(2) says that the Controller will only consider such a representation if the application has been submitted for inspection.
Section 55(3) says that if after considering the representation, the Controller determines that the patent application should be denied or that the whole specification has to be amended, he should notify the applicant.
Section 55(4) says that within three months after receiving the notice under sub-rule (3), the applicant may file his statement and any supporting evidence, if any, in support of his application, with a copy to the opponent.
Section 55(5) says that after considering the applicant’s statement and evidence, the opponent’s statement and evidence, and the parties’ submissions, and after hearing the parties, if so requested, the Controller may reject the representation, require the complete specification and other documents to be amended to his satisfaction before the patent is granted, or refuse to grant a patent on the application by issuing a spoken order to rule on the application and the representation at the same time, usually within one month of the aforesaid processes being completed.

References:-

Patent pre-grant and post-grant opposition procedure in India vs. re-examination in the US

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February 28, 2022