25. Opposition to the patent
(1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of pre-grant opposition to the Controller against the grant of patent on grounds including: wrongful obtaining of the invention; prior publication or prior claiming in earlier Indian specifications or other documents; prior public knowledge or public use in India; obviousness/lack of inventive step; the subject-matter not being a patentable invention; insufficient or unclear description; failure to disclose or false disclosure of foreign-application information under section 8; late convention applications; non-disclosure or wrong mention of source/geographical origin of biological material; and anticipation by traditional knowledge available within a local or indigenous community. The Controller shall, if requested for a hearing, hear the person and dispose of the representation in the prescribed manner and time.
(2) At any time after grant of patent but before the expiry of one year from the date of publication of the grant, any person interested may give notice of post-grant opposition to the Controller on substantially the same grounds as in sub-section (1) (adapted to a granted patent and the patentee), but on no other ground.
(3)(a) Where notice of post-grant opposition is duly given, the Controller shall notify the patentee. (b) The Controller shall, by order in writing, constitute an Opposition Board of such officers as he may determine, and refer the notice of opposition and documents to it for examination and recommendations. (c) The Opposition Board shall conduct its examination in the prescribed manner.
(4) On receipt of the Opposition Board’s recommendation and after giving the patentee and opponent an opportunity of being heard, the Controller shall order either to maintain, amend or revoke the patent.
(5) In passing an order under sub-section (4) on the ground of prior public knowledge/use or obviousness, the Controller shall not take into account any personal document or secret trial or secret use.
(6) Where the Controller orders that the patent be maintained subject to amendment, the patent shall stand amended accordingly.
Sections 25 and 26 were substituted (introducing separate pre-grant and post-grant opposition, and the Opposition Board) by the Patents (Amendment) Act, 2005, w.e.f. 1-1-2005.
