Opposition – is an administrative process of many jurisdictions which allows third parties to formally intervene in the patent examination process to challenge the validity of a pending patent application (pre-grant opposition) or a granted patent (post-grant opposition). Many jurisdictions around the world offer lengthy and costly litigation proceedings which is the only way by which a patent can be invalidated.
In India, a pre-grant opposition can be filed by any person after the publication of patent application but before the grant of patent under section 25(1) of the Patents Act, 1970 on the following grounds:
Wrongfully obtaining the invention
Anticipation by prior publication in India or elsewhere
Anticipation by prior claiming in India
Prior public knowledge or public use in India
Obviousness and lack of inventive step
Non-patentable subject matter (u/s 3 and 4)
Insufficiency of description of the invention;
Non-disclosure of information or false information by an applicant (u/s 8)
Patent application not filed within 12 months of filing the first application in a convention country;
Incorrect mention of source/ geographical origin of biological material
Anticipation of invention with regard to traditional knowledge of any community, anywhere in the world.
The Representation for opposition is made in Form-7A and it shall include a statement and evidence, if any, in support of the representation and a request for hearing if so desired. Such representation is considered only when a request for examination has been filed. On consideration of the representation, the controller sends a notice to the applicant along with a copy of such representation and if applicant desires he/ she can file a reply within 3 months from the date of notice. After considering the representation and submission made during the hearing, the Controller gives his decision either requiring the amendments in the specification or refusing or accepting the grant of patent, within one month from the completion of above proceedings.