Patent opposition provides an opportunity to the public to challenge frivolous and legally invalid patents. Under the 1970 Act, the patent could be opposed before it was granted (pre-grant opposition). The person opposing the patent is part to the proceedings. Under the 2005 Amendment Act, the opposition procedure is streamlined by having both pre-grant and post-grant opposition in the Patent Office.
Once the complete specification of the patent applicant is published, an opposition to that patent can be made via two stage, fist pre-grant opposition and second post-grant opposition.
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Pre-Grant Opposition
Pre-Grant Opposition can be made by ANY PERSON within a period of three months from the date of publication of complete specification or before the grant of patent whichever is later by Form 7A at the appropriate office with a copy to the applicant, and shall include a statement and evidence, if any, in support of the representation and a request for hearing. A requisite fee mentioned in Table I of the First Schedule. (See Rule 7 of the Patent Rules, 2003) is payable for filing a pre-grant opposition.
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Post Grant Opposition
Post-Grant Opposition can only be made by ANY PERSON INTERESTED before the expiry of one year from the date of grant of patent by Form 7 at the appropriate office with a copy to the applicant, and shall include a statement and evidence, if any, in support of the representation and a request for hearing. No fee is payable for filing a post grant opposition.
Leading Case: Neon Laboratories Pvt. Ltd. v. Troikaa Pharma Ltd. 2011 (45) PTC 357
Under Sec. 25(1), “any person” can raise objections before the grant of patent on wider grounds of public policy and public interest viz. health, nutrition, issue of affordability of medicine, whereas Sec. 25(2) is restricted to objections raised by “person interested” after the grant of patent, for revocation of patent. Thus, Sec. 25(1) is wider than Sec. 25(2).
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