The Hindu : National : Facility to oppose patents before grant

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Monday, Jan 03, 2005

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National

Facility to oppose patents before grant

By Our Special Correspondent

NEW DELHI, JAN. 2. The Government, on December 31 notified the rules for the new patent regime under which facilities for opposing the patent at the pre-grant stage as well as opposition after the grant of patent have been provided for.

The restructured procedures in the ordinance for the new patent regime, read with the amended rules, provide any person the facility of opposing the grant of patent on initial publication of a patent application.

The representation may be filed within three months from the date of publication of application or before the grant of patent whichever is later.

The representation opposing the grant of patent will have to include a statement and evidence to support the opposition to the patent and a request for hearing could also be made.

The opposition could be filed on grounds relating to patentability, that is, lack of novelty, inventiveness and industrial applicability, for non-disclosure or wrongful disclosure of source of geographical origin of biological material used in the invention or anticipation of invention by traditional knowledge. Such representation will be disposed of by a composite order either rejecting the contention and granting the patent, or accepting the contention and rejecting the patent application.

Any person could also file an objection to a patent after it has been granted at any time during the life of the patent. This facility will be in line with the system operating in most patent offices worldwide. It will be in addition to the option of challenging a patent in the appropriate judicial forum.

The Government's elaboration of the new rules has been necessitated by some misinformed speculation based only on a reading of the ordinance about pre-grant opposition.

According to an official announcement, procedures are generally described in the rules framed under an Act and not in the Act itself.

The statement said the new rules provide correctives against delays and introduce a simplified, efficient, cost-effective and user-friendly mechanism, which would not only facilitate expeditious grant of patents but also safeguard the interest of third parties.

Also, before the promulgation of the ordinance, there was no provision of post-grant opposition and the only recourse was a court of law.

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