- Patent opposition in India can be done, either before the patent is granted, by filing pre-grant opposition by representation, or after the grant of the patent within a year, by filing a post grant opposition.
- Pre-grant Opposition can be filed by any person after publication of the application in the Indian Patent Journal till the grant of the patent. The grounds of opposition are provided under section 25 (1) of the Indian Patent Act 1970 which are:
- Non-compliance of patentability requirements.
- Non-disclosure or wrongful disclosure of genetic resources or traditional knowledge
- Pre-grant opposition is considered only after the filing of a request for examination by the applicant or any other party. The representation may be given at the appropriate office along with a statement and evidence in support of the opposition. A hearing can also be requested, if desired, but it is not mandatory. If the Controller decides that the application needs amendment or rejection, a notice shall be given to the applicant in this regard, which he must reply within a period of one month from the date of the notice, with a statement and evidence in support of his application. The case shall be decided normally within a month, on completion of the proceedings.
- Post-grant Opposition can be filed at the appropriate office by any interested person within 12 months from the date of publication of the grant of patent in the Indian Patent Journal. The grounds of opposition as provided under section 25 (2) of the Patent Act 1970, are as follows:
- The patentee or the applicant wrongfully obtained the invention from the opponent or a person from whom the opponent derives title;
- The invention was published before the priority date, subject to the limitations on anticipation under section 29 Patents Act, 1970;
- The invention was previously claimed in an Indian application having an earlier priority date;
- The invention was publicly known or publicly previously used in India and if an invention relates to a process then it shall be deemed to publicly known or publicly used in India when a product made by that process had already been imported into India before the priority date;
- The invention lacks any inventive step over any prior publication or over any prior use in India;
- The subject matter of the invention is not patentable under the Patent Act 1970;
- The disclosure of the invention or the method by which it is to be performed is not sufficient and clear;
- The patentee has failed to disclose or has furnished false information regarding foreign applications;
- There is no disclosure or wrong mentioning of the source and geographical origin of the biological material used for the invention;
- The invention is anticipated by the tradition knowledge in India or elsewhere.
- The grounds for both pre-grant and post-grant oppositions in India are the same and there is nothing which prohibits a pre-grant opponent from subsequently filing a post-grant opposition. Nevertheless, there are several procedural differences between the two types of opposition. In pre-grant opposition, any person can move the representation, whereas only an interested person can file a post-grant opposition. The opportunity for hearing is not mandatory in a pre-grant opposition. Also, there is no remedy against an order of the Controller in a pre-grant opposition, except to file a writ petition before the High Court.