Pre-grant and post-grant opposition in India

Pre-grant vs post-grant opposition

Fees are the e-filing amounts in Table I of the First Schedule, as substituted in 2024. The lower rate applies to natural persons, startups, small entities and educational institutions. Neither form can be filed on paper.

Section 2(1)(t) says a "person interested" includes a person engaged in, or in promoting, research in the same field as the invention. The definition is inclusive, so a competitor making or planning to make a similar product can also qualify. Pre-grant opposition has no such test.

Grounds of opposition under section 25

Section 25(1) (pre-grant) and section 25(2) (post-grant) list the same eleven grounds, in nearly the same words, and both end "on no other ground". An opposition can rely on any of them:

• (a) the applicant or patentee, or the person they claim through, wrongfully obtained the invention or any part of it from the opponent or the person the opponent claims through;
• (b) the invention as claimed was published before the priority date of the claim, in an Indian patent specification filed on or after 1 January 1912 or in any other document in India or elsewhere (subject to the exceptions in section 29(2) and (3));
• (c) the invention is claimed in a claim with an earlier priority date in another Indian complete specification published on or after the priority date of the claim (prior claiming);
• (d) the invention was publicly known or publicly used in India before the priority date. For a process, importing a product made by it before that date counts, unless the import was "for the purpose of reasonable trial or experiment only";
• (e) the invention is "obvious and clearly does not involve any inventive step" over the documents in (b) or what was used in India before the priority date;
• (f) the subject of a claim is not an invention under the Act or is not patentable under it, for example under section 3 or 4;
• (g) the complete specification does not sufficiently and clearly describe the invention or the method of performing it;
• (h) the applicant or patentee failed to give the Controller the information on foreign filings required by section 8, or gave information they knew to be false in a material particular;
• (i) for a convention application, it was not filed within 12 months of the first application for protection in a convention country (in section 25(2), also a first application in India);
• (j) the complete specification does not disclose, or wrongly mentions, the source or geographical origin of biological material used for the invention;
• (k) the invention is anticipated by "knowledge, oral or otherwise," available within any local or indigenous community in India or elsewhere;

In a post-grant opposition on public knowledge or use (d) or obviousness (e), the Controller cannot take into account "any personal document or secret trial or secret use" (section 25(5)). If the patent is revoked because the invention was obtained from the opponent (a), the Controller can, on the opponent's request, amend the patent into the opponent's name ( section 26 ).

Pre-grant opposition procedure (rule 55)

1. Representation: file Form 7A at the appropriate office with a copy to the applicant, including a statement, any evidence, and a request for a hearing if you want one (rule 55(1)).
2. Waits for Form 18: the Controller considers the representation only once a request for examination has been filed (rule 55(2)).
3. Prima facie check: if no prima facie case is made out, the Controller notifies the opponent. Without a hearing request, an order refusing the representation follows within one month; if the opponent asks to be heard, the order comes within one month of the hearing. If a prima facie case is made out, the Controller records the reasons within one month of receiving the representation and notifies the applicant (rule 55(3)).
4. Applicant's reply: the applicant may file a statement and evidence within 2 months from the date of the notice, with a copy to the opponent (rule 55(4)).
5. Hearing: the Controller must hear the opponent if asked (section 25(1)). The notice, fee and 5-day rule for new publications in rule 62(2) to (4) apply (rule 55(5A)).
6. Decision: the Controller rejects the representation, requires the specification to be amended before grant, or refuses the patent, in a speaking order deciding the application and the representation together, ordinarily within one month of the proceedings ending (rule 55(5)).

Post-grant opposition procedure (rules 55A to 63)

The Board's recommendation does not bind the Controller, who decides after hearing the parties ( section 25(4) ). If the patent is maintained subject to amendment, it stands amended accordingly (section 25(6)). Documents in a language other than English need an attested English translation (rule 61(2)). If the patentee withdraws the patent after the notice of opposition, the Controller may award costs to the opponent (rule 63).

Fees

• Form 7A, pre-grant representation: ₹4,000/ ₹20,000 (entry 9(ii)). It had no fee before 15 March 2024.
• Form 7, post-grant notice: ₹8,000 / ₹40,000 (entry 9(i)), up from ₹2,400 / ₹12,000.
• Notice to attend a hearing under rule 62(2): ₹1,500 / ₹7,500 (entry 10).

Every other official fee is on the patent fees in India page. Professional fees for drafting the statement and evidence are extra.

After the decision: appeal and revocation

Section 117A(2) allows an appeal to the High Court from a decision under section 25(4), the post-grant decision, and from a refusal of an application under section 15. The appeal must be filed within three months of the decision, or such further time as the High Court allows (section 117A(4)). These appeals went to the Intellectual Property Appellate Board until the Tribunals Reforms Act, 2021 abolished it from 4 April 2021.

Once the one-year window has passed, or for a person who lost a pre-grant opposition, the patent can still be challenged. A person interested or the Central Government can petition the High Court for revocation under section 64(1) , and a defendant in an infringement suit can counter-claim for it. Section 64 sets no time limit.

Practical points

• Watch publications: applications appear in the Indian Patent Journal about 18 months from priority, earlier with Form 9. Search competitors' names and your technology field regularly.
• File early: the pre-grant window closes on the day the Controller decides to grant the patent, which can be any time after the 6-month bar. A representation that arrives after grant is not considered as one; a person interested then has to use Form 7.
• Watch grants too: the one-year post-grant period runs from publication of the grant in the Journal (section 43(2)). Diarise it the week the grant appears.
• Put everything in: evidence goes with the representation or notice. In a post-grant opposition, further evidence needs the Controller's leave (rule 60).
• If you are opposed: diarise the 2-month reply period from the notice (pre-grant) or from receipt of the opponent's statement (post-grant). In a post-grant opposition, missing it means the patent is deemed revoked (rule 58(2)).

The Indian patent timeline shows where both windows sit among the other deadlines, and how to file a patent in India covers the steps before them.

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