india – pre-grant opposition editorial

The Economic Times (part of the India Times) has an editorial today about the need to retain a pre-grant opposition process that does not unnecessarily delay the issuance of valid patents.

While most countries allow objections only after the grant of a patent, some like Australia and New Zealand have opted for the other. The obvious benefit of pre-grant system is that it precludes bad or frivolous patents. Its major failing is that it could degenerate into a tool for delaying patents. The other problem with the pre-grant provision is that the challenger does not have all the details available to contest the patent. In such a situation, challenges are likely to be ambiguous, making them liable to rejection, which would defeat the very purpose of this clause. Post-grant provision has no such problem as complete information on a patented product is available, making the challenges and the defence more informed. Moreover, there is no danger of competition delaying a patent. The major shortcoming of the post-grant challenge is that remedy is available only through courts, which makes redressal a lengthy process. In the case of bad patents, the delay allows the patent holder to enjoy a wrongful monopoly. This is of particular concern in India given the time-taking judicial process.

Interesting.  India is going to implement a “blended” system of both pre and post-grant opposition. As background, India’s Group of Ministers (GoM) is considering changes to India’s patent laws to bring them into line with those of other WTO member countries and in compliance with WTO guidelines.

For information and a good starting place for implementing a post-grant opposition procedure in the U.S., read “Prospects for Improving U.S. Patent Quality via Post-grant Opposition” at the University of California’s eScholarship Repository.

You may be interested in reading the following related posts:

1. Post Grant Review For Trolling?
2. Patents & Inventiveness
3. Patent Reform Act – Part Deux
4. India stumbles into IP insurance
5. greenpeace challenges german stem cell patent

Posted by Douglas Sorocco, October 31, 2004 at 8:08 pm
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