Patent opposition can be done before the patent is granted by filing pre-grant opposition by representation and also after the grant of the patent within year by filing post grant opposition.
Pre-grant Opposition :
Pre-grant opposition can be filed by any person by representation in the Indian patent office within six months from the date of publication of the patent application or in case the six months duration is not available then the representation can be filed till the grant of the patent whichever expires later. The grounds of opposition are provided under section 25 (1) of the Indian Patent Act 1970 as amended in 2005. Some of important grounds of the are wrongful obtainment, anticipation by prior publication or used or already claim in any other patent, obviousness, the subject matter of the invention falls into non-patentable category under section 3 of the Patent Act 1970 etc.
Pre-grant opposition is considered only after the filing of an examination by the applicant or any party. On receiving of the pre-grant opposition the controller issue a notice to the patentee. The patentee is to submit his statement and evidence against the opposition within three months from the date of notification by the controller of patent. The controller may offer a hearing on request by the patentee as well as by the opponent to settle down the pre-grant opposition. A pre-grant opposition has to be disposed off by the Controller within one month by rejecting the opposition and granting the patent or by accepting the opposition and rejecting the application or amending the application and granting the patent.
Post-grant Opposition can be filed by any interested persons who are engaged in or promoting research in the field of technology. Post grant opposition can be filed within a period twelve months after the grant of a patent. The grounds of opposition are provided under section 25 (2) of the Patent Act 1970. Some of the grounds are wrongful obtaining of the invention by the inventor, anticipation by prior publications, use, traditional knowledge , the invention is obvious to a person in the art, non-patentable inventions, disclosure of false information to patent office, non-disclosure or wrongful disclosure of the biological source etc.
An opposition board is formed by the controller consisting of three members. One of them will be chairman. The examiner who has dealt with the patent application during the prosecution for grant is not eligible to become a board member. The opposition board is given the time three months to conduct examination and submit recommendation with reasons on each ground of opposition. The Controller fix for a date of hearing by giving at least ten days to the parties on receiving the recommendation from the opposition board. After hearing the parties and analyzing the recommendation of the board the controller decide the matter and inform the parties about his decision giving reasons thereof. Controller can order to either maintain or amend or revoke the patent.