QualPharma December 2020

PATENT AND TRADEMARK
Patent Opposition in India
A patent is an exclusive monopoly
granted to the inventor, for an
‘invention- product or process’ to
lawfully exclude others from making,
selling or using the invention. The
processing of a patent application is a
multi-stage process that involves-
Filing of an application
Electronic data processing
Screening and classification
Publication
Examination
Hearing, if required
Pre-grant opposition
Grant/refusal
post-grant opposition
The procedure for filing patent application
and its processing up to grant/
refusal, maintenance etc. are governed by
The Patents Act, 1970. This article
focuses on the opposition system in Indian
Patenting procedures. Opposition
proceedings, in fact, in any jurisdiction
are fundamentally required to confine the
grant of wrongful or frivolous inventions
by third parties before or after the grant
of a patent. Every jurisdiction follows
certain laws to impede such illegitimate
grant of patent. The Indian Patent Act
provides the provision of both pre-grant
as well as post-grant opposition. Section
25 of the Act as amended in 2005, governs
the provisions for opposition proceedings
to grant of patents.
Pre grant opposition
The provisions of section 25(1) of the Indian
patent (Amendment) Act 2005 governs
the filing of a pre grant opposition by
third parties against a patent application,
based on the grounds provided under this
section. Under this provision any person
or third party may, in writing, represent
by way of opposition to the Controller
against the grant of pending patent application
after it has been published. The
Indian jurisdiction provides third parties
a time period of 6 months from the date
of publication of the application to the
grant of a patent, to file the representation
for opposition in Form-7(A) along
with a statement and evidence in support
of the opposition. However, the Opponent
may file the representation only after the
request for examination of the application
has already been filed by the Applicant.
The Controller then notifies the Applicant,
based on the virtue of representation
by the Opponent, and the Applicant
is required to submit a reply statement
within three months of receipt of the notice
along with evidence, if any. The Controller
then after considering the written
submissions and hearing both parties,
may either dispose-off the opposition and
proceed with the grant of patent, or ask
the applicant for certain amendments in
the complete specification and/or other
documents before allowing for the grant
of patent, or may refuse the grant of patent
by passing an order under Section 15
of the Patent Act, 1970.
Tanu Singh
Tanu Singh is a founder and Director
of Intellect Vidhya Solutions LLP.
She has 9 years of IPR industry
experience. She is a Registered
Indian Patent agent. She has
co-authored a book named "All you
want to know about patent" and has a
publication in her name in Pharmabiz.
QualPharma *Dec 2020* , Vol.3 ISSUE 12