A patent is an exclusive right granted to the original inventor for a novel product or a novel process that provides, a unique way of doing something, or which discloses a new technical solution to a problem. It provides monopoly right to the inventor to make, sell his invention or product. Hence it is very essential that patent is only awarded to those innovations which justify the exclusive right and comply with the patentability criteria. Opposition proceedings are structured to restrain wrongful obtaining of patents and claiming of the frivolous or petty inventions. Laws providing under Indian patent act for pre grant and post grant of patent are essential to obstruct the unlawful grant of patent. Under Indian Patent act, there are two provisions when opposition may be filed either via pre-grant opposition or post-grant opposition provision depending upon the stage of the patent. The recent heave in patent filings in India may be attributed to the revolution in the Indian Patent System on 1st January, 2005, when India signed the Trade Related Aspects Intellectual Property Rights (TRIPS) agreement, wherein Section 25 of the Act was amended in light of the TRIPS agreement to introduce an "integrated" system of both pre-grant and post-grant opposition in India. ok
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. ok999
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 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 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 trading/ financial interest in the goods related to the patented product. ulppp
Similar to the pre-grant opposition, a post-grant opposition may be filed on a number of grounds as specified under section 25(2) of the Act. It is notable that many of the grounds are similar to the grounds required for filing pre-grant opposition.