Section 25 of Patent Act, 1970, in India governs opposition to patent grants. It allows any person to oppose a patent application (pre-grant opposition) or a granted patent (post-grant opposition) on specific grounds. Pre-grant opposition can be filed before the patent is granted, citing reasons like lack of novelty, inventive step or non-patentable subject matter. Post-grant opposition can be filed within one year of the patent grant, raising similar grounds. The Controller of Patents examines the opposition, hears both parties and decides whether to grant, amend or revoke the patent which ensures fair scrutiny of patent validity. This article explains Section 25 of Patent Act, its structure, reasons for opposition, procedures, and differences between pre grant and post grant opposition.
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What is Section 25 of Patent Act?
Section 25 of Patent Act, 1970 is called Opposition to the patent, and sets out how people can challenge a patent. It helps the Patent Controller make better decisions and prevents patents that could harm innovation or public interest.
Section 25 of Patent Act has two parts i.e. Section 25(1) for pre-grant opposition and Section 25(2) for post-grant opposition.
Pre-grant opposition happens before a patent is approved, acting like an extra check during the review process. Post-grant opposition happens after a patent is granted but only within a set time.
Both types use similar reasons to challenge patents, focusing on issues like newness, creativity, and proper disclosure. Changes to the Patent Act in 2005 made these rules align with global standards, like the Trade Related Intellectual Property Rights Agreement, while keeping India’s open approach to patent challenges.
Pre-Grant Opposition under Section 25(1)
Section 25(1) lets anyone file a challenge to stop a patent after its application is published but before it’s approved. Section 25(1) makes the patent system inclusive in India, unlike stricter systems in places like Europe or the United States.
Who Can File and When
Anyone can file a pre-grant opposition, even without a direct stake in the patent. This openness encourages public oversight but can lead to misuse, like fake or anonymous challenges to slow things down. There’s no fixed deadline after publication, but the challenge must come before the patent is granted. The timing often depends on the examination process.
Reasons for Opposition
Section 25(1) lists specific reasons to challenge a patent. These ensure the invention is truly new and meets patent rules. Here’s a simple table of the reasons:
Reason | Description |
(a) Wrongful obtaining | The applicant took the invention from the opponent or someone they represent. |
(b) Prior publication | The invention was published before its priority date in Indian documents (after 1912) or elsewhere. |
(c) Prior claiming | Another Indian patent application with an earlier date claims the same invention. |
(d) Public knowledge or use | The invention was already known or used in India before the priority date, including imported products for processes. |
(e) Obviousness | The invention isn’t creative enough based on existing knowledge or use in India. |
(f) Not an invention | The invention doesn’t qualify as patentable under the Act (e.g., excluded under Section 3). |
(g) Insufficient description | The patent application doesn’t clearly explain the invention or how it works. |
(h) Non-disclosure | The applicant didn’t provide required information under Section 8 or gave false details. |
(i) Convention timeline | For international applications, the filing wasn’t within 12 months of the first foreign application. |
(j) Biological material | The applicant didn’t disclose or wrongly described the source of biological material. |
(k) Indigenous knowledge | The invention is already known through local or indigenous community knowledge in India or elsewhere. |
Procedure
The process follows Rule 55 of the Patents Rules, 2003. The opponent files Form 7A with a statement and evidence, sending a copy to the applicant. The Controller reviews it after a request for examination is filed. If the challenge seems valid, the Controller notifies the applicant, who has three months to respond with evidence. Hearings may happen if requested. The Controller decides within one month, possibly rejecting the patent, requiring changes or dismissing the challenge. No fees are needed, which makes it affordable but open to misuse.
Know about the Rights and Limitations of Patent Law.
Post-Grant Opposition under Section 25(2)
Section 25(2) lets people challenge a patent after it’s granted, catching issues missed during the initial review. This process is stricter and has a tight deadline since the patent already gives exclusive rights.
Who Can File and When
Only a “person interested” can file, meaning someone with a real business or research stake, like a competitor or an NGO. The challenge must be filed within one year from when the patent grant is published.
Reasons for Opposition
The reasons for post-grant opposition are the same as for pre-grant, listed in the table above. This consistency lets challenges move from pre-grant to post-grant if needed.
Procedure
The opponent files a notice with evidence. An Opposition Board of three examiners reviews the case and makes a recommendation within three months. The patent holder responds within two months, and the opponent can reply. Hearings are held, and the Controller makes a final decision, which may cancel, keep, or change the patent. If the patent is canceled or refused, appeals can go to the High Court.
Read about the role of Patent in Intellectual Property Rights.
Differences between Pre-Grant and Post-Grant Oppositions
Pre-grant and post-grant oppositions under Section 25 of Patent Act have clear differences. These differences balance speed with careful review, ensuring patents are strong but can be challenged.:
Aspect | Pre-Grant Opposition (Section 25(1)) | Post-Grant Opposition (Section 25(2)) |
Eligibility | Open to any person, encouraging broad public participation without requiring a specific interest. | Restricted to a "person interested" (e.g., those with commercial or other interests affected by the patent). |
Timing | Filed after publication of the patent application (under Section 11A) but before the patent is granted. No fixed deadline, typically within examination period. | Filed within one year from the date of publication of the patent grant in the official journal. |
Procedure | Simpler process; filed via Form 7A (no fee). Controller considers during examination; applicant may respond. No formal board, no automatic right to be heard. | Formal adversarial process; filed via Form 7 (with fee). Involves Opposition Board for expert advice, evidence exchange, and hearings. |
Outcomes and Appeals | Can lead to refusal, amendment, or grant of the patent. Decisions not directly appealable by opponents. | Can result in revocation, amendment, or maintenance of the patent. Decisions appealable to the High Court. |
Summary
Section 25 of Patent Act, 1970, shows the commitment to a fair patent system by allowing challenges to weak patents. Through pre-grant and post-grant opposition, it supports innovation while protecting society. However, issues like fake filings highlight the need for careful oversight. Understanding Section 25 of Patent Law in India guides clients on patent strategies, challenges and defenses. As patent law evolves, this section remains a vital tool for keeping India’s intellectual property system strong and fair.
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Section 25 of Patent Act: FAQs
Q1. What is Form 25 under the Patent Act 1970 used for?
Form 25 is used to request an extension of time for filing documents or responses under the Patents Act, 1970.
Q2. How many years is a patent protected?
A patent is protected for 20 years from the filing date.
Q3. What is Section 24 of the Patent Act?
Section 24 deals with the powers of the Controller to maintain secrecy of certain inventions relevant to defense.
Q4. What is the time limit for post-grant opposition?
Post-grant opposition must be filed within one year from the patent grant's publication.
Q5. What are the grounds of opposition to the grant of a patent?
Grounds include lack of novelty, inventive step, non-patentable subject matter, insufficient description, and others listed in Section 25.
