Opposition on Patent:

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In India, only a person engaged in, or promoting research in the same field as that to which the invention relates, including an organization that has a manufacturing or trading interest in the goods connected with the patented article or a financial interest in manufacturing such goods or which possesses patents relating to the same subject may file a notice of opposition against the grant of a patent within twelve months from the date of publication of the grant, the process of opposition is not just filing a petition for opposition there is a series of events which need to be followed. As opposed to a pre-grant opposition or post-grant opposition, the opponent shall state the nature of his interest in the proceeding.

A patent can be opposed on following grounds:

  • Wrongfully obtaining the invention
  • anticipation by prior publication
  • anticipation by prior date, Prior claiming in India
  • Prior public knowledge or public use in India
  • Obviousness and lack of inventive step
  • non patentable subject matter
  • insufficiency of description of the invention
  • non-disclosure of information as per the requirement or providing materially false information by an applicant
  • Patent application not filed within 12 months of filing the first application in a convention country
  • nondisclosure/ wrong mention of source of biological material
  • Invention anticipated with regard to traditional knowledge of any community, anywhere in the world.

The notice of opposition is filed before the patent office where the patent has been granted on various grounds, including inter alia that the invention was wrongfully obtained; lacks novelty; lacks inventive step; suffers from prior use; insufficiency of disclosure; and/or non-compliance of mandatory procedures. The notice must be filed along with a statement of opposition and evidence in support thereof. A copy of the statement and evidence, if any, shall be delivered to the patentee by the opponent.

Upon receipt of the opposition, the Controller shall notify the patentee of receipt thereof. Upon receipt, the patentee may file a response and supporting evidence within two months, failing which the patent shall be deemed to have been abandoned and the Controller shall issue the order of revocation and record the same in the register of patents.

Within one month from the receipt of the patentee’s reply, the opponent may submit the rejoinder and supporting evidence. The opponent shall deliver a copy of rejoinder and evidence to the patentee as well. Thereafter, no further evidence shall be delivered by either party, except with the direction of Controller.

Upon receipt of the notice of opposition, an Opposition Board, consisting of three members is constituted by the Controller. The Board examines the notice including all documents filed by the opponent and the patentee. After examination, the Board issues a joint recommendation within three months from the date of receipt of all documents. Based on the recommendation of the Board, the Controller fixes a hearing. Either party wishing to attend the hearing should inform the Controller in writing. After the hearing, the party desirous of being heard, or if neither party desires to be heard, then without a hearing, and after taking into consideration the recommendation of Board, the Controller shall decide the opposition, i.e., the Controller may revoke the patent, or order amendments in the patent or refuse the opposition.

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