Patent Opposition in India: Pre-Grant & Post-Grant Explained

Introduction

Patent law not only protects inventors and promotes innovation, but also ensures that only genuine and deserving inventions receive exclusive rights. This balance is maintained through a system of checks and objections. One of the most crucial legal mechanisms within the Indian patent framework is patent opposition.

With over 10 years of experience, RegistrationMART has guided inventors, startups, and corporates through both patent filings and opposition proceedings. This comprehensive article will help you understand the types of opposition, grounds, procedure, timelines, and strategic considerations involved in the Pre-Grant and Post-Grant Opposition under the Indian Patent Act.

Legal Foundation: Patent Act, 1970

Under the Indian Patents Act, 1970, two types of opposition are recognized:

• Pre-Grant Opposition: Section 25(1)
• Post-Grant Opposition: Section 25(2)

These mechanisms allow third parties to challenge a patent either before it is granted or after it is granted but within a prescribed period.

1. What is Pre-Grant Opposition?

A Pre-Grant Opposition is filed before the patent is granted, once the application is published but before it is examined or decided upon.

Who Can File: Any person (not necessarily an interested party)

When to File: After publication of the patent application but before grant

Grounds for Pre-Grant Opposition (Section 25(1))

1. Wrongful obtainment of the invention
2. Prior publication or public knowledge/use
3. Obviousness or lack of inventive step
4. Non-patentable subject matter (Sections 3 & 4)
5. Insufficient disclosure or unclear claims
6. Failure to disclose information under Section 8
7. Lack of novelty
8. Non-disclosure or misrepresentation of biological material source/origin

Procedure:

1. Form 7A is filed with supporting documents.
2. Controller may invite a reply from the applicant.
3. A hearing may be conducted.
4. Controller decides to grant, reject, or modify the application.

💡 Tip from RegistrationMART: A strong pre-grant opposition can stop a weak or unjustified patent from being granted.

2. What is Post-Grant Opposition?

A Post-Grant Opposition is filed after the patent is granted, but within 12 months from the date of grant.

Who Can File: Only an interested person (e.g., competitor, industry body)

When to File: Within 12 months of the publication of grant

Grounds for Post-Grant Opposition (Section 25(2))

• Same as pre-grant grounds, plus:
• Non-compliance with Section 35 (Secrecy Directions)
• Incomplete disclosure of best method
• Failure to comply with conditions imposed by the Act

Procedure:

1. Opponent files Form 7 with statement and evidence.
2. Patent holder submits a reply with evidence.
3. Opponent may file a rejoinder.
4. Opposition Board is constituted by Controller.
5. Board gives recommendation after hearing.
6. Controller gives final decision.

Key Differences: Pre-Grant vs. Post-Grant

Criteria	Pre-Grant Opposition	Post-Grant Opposition
Who can file	Any person	Only interested person
Time to file	After publication, before grant	Within 12 months of grant
Legal form	Form 7A	Form 7
Decision authority	Controller	Opposition Board + Controller
Impact	May prevent grant	May revoke or amend patent

Strategy Considerations

For Applicants:

• Respond promptly to oppositions
• Ensure clarity and completeness of claims
• Maintain detailed records of novelty & development

For Opponents:

• File strong evidence of prior art
• Cite legal precedents or similar cases
• Seek professional legal drafting

Expert Insight: Pre-grant opposition is often used tactically by companies to delay competitors’ patents.

Recent Case Studies

Case 1: Pharma Sector Pre-Grant Challenge

A generic manufacturer challenged a patent application for a cancer drug. The opposition highlighted prior publications and lack of inventive step. The Controller rejected the patent application.

Case 2: Post-Grant Revocation in Biotech

An agricultural firm revoked a patent on a genetically modified seed by citing inadequate disclosure and prior use. The Controller upheld the opposition.

Frequently Asked Questions (FAQs)

Q1. Can I file both pre-grant and post-grant oppositions?
No. If you’ve already opposed during pre-grant, you cannot oppose again post-grant on the same grounds.

Q2. What happens if the opposition is rejected?
The patent is granted (in pre-grant) or maintained (in post-grant). You may appeal to the High Court.

Q3. Is opposition time-consuming?
Yes. Post-grant proceedings may take 1–2 years depending on complexity.

Q4. Is it mandatory to have a lawyer or patent agent?
Not mandatory, but highly recommended due to technical and legal complexities.

How RegistrationMART Helps

• Patent search & prior art analysis
• Drafting and filing opposition forms (7A & 7)
• Strategic response to oppositions
• Representation during hearings

With over a decade of expertise, RegistrationMART has helped numerous businesses protect their IP through effective opposition strategies—both offensive and defensive.

Conclusion

Patent opposition is a powerful check-and-balance tool within India’s patent system. It ensures that only deserving inventions are protected while offering third parties the right to challenge unjust claims.

Whether you’re facing an opposition or considering filing one, RegistrationMART offers the legal expertise, strategic insight, and professional support needed to succeed.

Secure. Defend. Protect. Choose RegistrationMART for robust patent protection.