Patent invalidation in India is possible by initiating pre-grant patent opposition or post-grant patent opposition. Essentially, the grounds of patent opposition in India are mostly similar for both the pre-grant and post-grant proceedings. The Indian Patent law provides for a provision for opposition proceedings. These proceedings are administrative in nature. Opposition proceedings allow the third party to formally challenge the validity of the pending patent application. It also allows the third party to oppose the granted patents. The Indian Patent laws allow for two kinds of opposition proceedings. The opposition proceedings that are instituted before the grant of the patent are called pre-grant opposition whereas the opposition proceedings that are instituted after the grant of the patent are known as the post grant opposition proceedings.
Pre-Grant Patent Opposition
The Indian Patent Act under the provision of Section 25(1) provides for a provision of the Pre Grant opposition against a patent application. Under this provision any third party or the government suo motto, can challenge the grant of the patent. Challenges can be made to the application by informing the Controller of Patents in writing against the grant of a patent.
Post-Grant Patent Opposition
Post-Grant opposition as the name suggests is filed at any time after the grant of the patent but before the expiry of a period of 1 year from the date of publication of the grant of patent. The Indian Patent Act under the provision of section 25 allows any individual or persons interested to challenge the patent once it has been granted. Post-grant opposition may be filed on the grounds mentioned in section 25(2) of the Act.
How can I oppose patents filed by others?
Patent applications can be opposed either before the grant of the patent or after the grant of the patent. To oppose the patent application, the opposition needs to comply by the laws mentioned under the Patents Act and file certain documents such as, a written statement needs to be filed by the opposition along with the evidence in duplicate. The written statement must contain the nature of the interest of the opposition, the facts on which the case is based, the relief sought and the evidence if any. After the receipt of the notice of opposition, the patentee, if it wishes to contest, will submit a written statement along with the evidence to the patent office along with that of the opponents. If the patentee does not respond to the opposition within a time frame of 2 months the patent is deemed to be revoked.
If the patentee has replied to the opposition, then from one month of such a reply statement, the opponent may file the reply evidence in the patent office . If any other additional evidence is available, it may be filed only with the permission of the controller. Once these documents are filed the opposition board will examine each and every document including the evidence by the opponent, the reply by the patentee and will give a recommendation to the controller with reasoning for each ground mentioned in the notice of opposition within a time frame of 3 months of the date of documents forwarded to it.
Patent Claim Charts
With a view to prepare strong grounds for patent opposition, it is helpful to prepare patent claim chart for the patent to be opposed. In use, patent claim charts make it easy to understand the scope of the patent claims. Claim charts further make it simpler to learn about the different industry specific terms before filing a case of patent opposition. For specific purposes, patent claim charts can provide a list of all the elements of the patent claims, which can be mapped to understand the elements that have to be opposed on the grounds of lacking novelty, or inventive step, or both.
Patent Opposition as Business Strategy
Market research is a powerful tool to help your business strategy. It’s all about gathering information which gives an insight into your consumer’s thinking, purchasing patterns, and geographic area. Also, market research will help you monitor market trends and maintain an eye on what your competition is doing. When conducting competitive research into your business’ competitors you must first identify areas of strength and weakness, including the patent portfolio owned by your competition, out of which one or more patents can be invalidated by way of patent opposition proceedings. Competitive edge is important when conducting market research into your business’ competitors. Doing competitor analysis online is easy and quick and can give you valuable information that you can use to build your business and make your product or service more competitive. You should not only look at the technical aspects of your competitor’s business but also their marketing, advertising and customer service aspects as well. This will enable you to see what areas your business lacks and help you to build it from the ground up. It’s important to note that conducting business in the information age means staying ahead of your competitors by conducting business as efficiently as possible.
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