Indian Patent Procedure 3 -‘Client2Attorney’

This post continues from Indian Patent Procedure 2.

Dear Mr X,

We write in furtherance of our previous letter, apprising you of the examination process in the Indian patent procedure.

Another crucial stage to note is the stage of opposition. India follows the concept of two-fold opposition in case of patents i.e. pre-grant opposition and post-grant opposition. After your application is published, it is open for a pre-grant opposition for a period of 12 months from the date of publication. Such pre-grant opposition may be filed by any person interested over any of the grounds mentioned in Section 25(1) of the Patents Act, 1970 (“Patents Act”). If the opponent in the pre-grant opposition wins, the Controller will refuse to grant you a patent. In case you win the pre-grant opposition proceeding, your patent is then put up for examination, as previously explained.

Once your patent has been examined by the controller and you have made a satisfying reply to the objections raised in the FER your application will be put up for a patent grant. A document containing a seal of the Controller of Patents and Designs will be issued to you. Please note that India does not follow the concept of automatic validity of patents. and even after a patent is granted it is not presumed to be valid. (It is a valid precedent in India, see here). Furthermore, even after a patent is granted it is open for revocation under any provision of Section 64 of the Patents Act. A revocation proceeding may be initiated at any stage before the expiry of patent.

After you have been granted a patent, your patent is open for a post-grant opposition within 12 months of the date of grant. A post-grant opposition may be filed by a person interested on any of the grounds mentioned in Section 25(2) of the Patents Act. In case you fail to make a case, your patent will be revoked.

A very important point to note here is that a pre-grant opposition proceeding will not in anyway act as a res judicata in a post grant opposititon proceeding or in a subsequent revvocation proceeding.

Regards,
L&P

Siddhant Sharma

Siddhant is a Patent and Intellectual Property lawyer. He finds joy in exploring and writing about niche areas of law. He is finding better ways to describe the patent profession to a five-year old and a sixty-five year old.

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