India has sound systems in place to check quality of patents .validity of patents can be challenged under:
Sec 25(1): Pre grant opposition: Under this section a patent may be opposed by any person anytime after the patent application is published but before its grant. The proceedings under pre-grant opposition are ex-parte .
Sec 25(2): Post grant opposition: Under this section “any interested person” may oppose the patent within 1 year of publication of date of grant of patent .The proceedings under post grant opposition are Inter-partees
Sec 64: Revocation of patent: Under this section a patent may be revoked any –time during the life of a patent by a person interested.
Both pre and post grant opposition provide for pre-litigation mechanisms for challenging the validity of patents. They can be used to argue against the unsubstantiated claims made by the patent holder without going to court of law or infringing the patent, both of which are expensive options.
A person may also file a petition for revocation with the Intellectual Property Appellate board (IPAB). The revocation proceedings can take place in the Appellate board while the high court will entertain revocation proceedings only when counter claim is made by the alleged infringer.
In case of post grant oppositions unlike pre grant oppositions ,the decision of the controller can be appealed in the Appellate Board.A patent invalidation application is the defense most frequently used in patent infringement litigation. The existence of a valid patent is the precondition for a patent infringement claim. In patent infringement litigation, the court, will not deny the validity of a patent directly and will make a decision on patent infringement only after the validity of the patent is decided by the Appellate board. If the Appellate Board holds that the patent is invalid then high court can give a verdict of non-infringement of the patent. The court may exercise its discretion in case of parallel proceedings based on the merits of the case and possible overlap of proceedings.
3.4 Pre Grant opposition vs. Post Grant opposition :
The third amendment to the patents act incorporated provisions for both pre grant as well as post grant opposition under Section 25(1) and Section 25(2).Prior to third amendment India provided only for pre-grant opposition .Indian patents act is distinctive as compared to US and Europe , as India is the only country which provides for an opportunity for opposition before the grant of the patent as well as after the grant of the patent.Pre-grant opposition is the first opportunity opponents can avail to challenge the grant of a patent .
The new procedure does not treat the pre-grant opponent as a party to the proceeding: there is no fee for filing opposition, no procedure for hearing the opponent, and no appeal if the opposition fails.
The new procedure innovatively shifts the burden of proof on the applicant, who has to show why the application...