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Patent Objection System In India

A patent is an exclusive right, legally granted to the original inventors. A patent is granted for a novel product or a novel process that has a unique way of doing something. Or which addresses a new technical solution to a problem. It ensures a monopoly right to the inventor to make, sell and continue further research for his invention or product. Therefore, a patent is only awarded to selected products or research work, that are eligible to justify the exclusive right and adhere to the patentability criteria. The opposition party can proceed to restrain wrongful obtaining of patents and claiming of impractical or petty inventions. Under the Indian patent act, pre-grant and post-grant of the patents are essential to obstruct the unlawful grant of any patent. There are two provisions for opposition filed either via pre-grant opposition or post-grant opposition, depending upon the stage of a patent. The recent surges in patent filings in India are associated with the revolution in the Indian Patent System on 1st January 2005. That was when India signed the Trade-Related Aspects Intellectual Property Rights (TRIPS) agreement. Section 25 of the Patent Act was amended in light of the TRIPS agreement, introducing an "integrated" system of a complete pre-grant and post-grant opposition in India.

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Pre Grant Opposition:

Section 25(1) of the Patent (Amendment) Act 2005 provides provisions for pre grant opposition of Patent. Under this provision any person or any third party or Government may challenge the application of grant of patent and inform to the controller of Patents for opposition, in writing against the grant of a patent after the application for a patent has been published but before the grant of a patent a patent. Pre-grant opposition acts as a defensive shield to confirm the validity of the patent applications before patents are granted to them. Furthermore pre grant opposition proceeds as a business approach, where opponents take it as a golden opportunity for opposing the unlawful protective rights.

  • -  Wrongfully Wrongfully obtaining an invention for patent grants.
  • -  Wrongfully Wrongfully Anticipation by prior publication for the patent.
  • -  Wrongfully Wrongfully Non-disclosure of information as per the requirement or providing materially false information by an applicant.

Post Grant Opposition:

Post-grant opposition may be filed at any time after the grant of patent but before the expiry of a period of one year from the date of publication of the grant of the patent. Under this provision, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the grounds mentioned in section 25 of the Patent (Amendment) Act 2005. 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 field as that to which the invention relates. In addition, the interested person may also include any organization that has a manufacturing or trading/ financial interest in the goods related to the patented product. Similar to the pre-grant opposition, a post-grant opposition may be filed on several grounds as specified under section 25(2) of the Act. Notably, many of the grounds are similar to the grounds required for filing pre-grant opposition.

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