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Close patent loopholes Patents Need Legal Support


THE group of ministers (GoM) on patents is in favour of : retaining the pre-grant opposition provision in the patents Act. This will prelude grant of bad patents. but safeguards are needed to ensure that the provision is not used to delay patents. Both post- and pre-grant challenges to patents have their benefits and shortcomings. That is why there is no consensus the world over on which is a better approach. While most countries allow objections only after the grant of a patent, some like Australia and New Zealand have opted for the other. The obvious benefit of pre-grant system is that it precludes bad or frivolous patents. Its major failing is that it could degenerate into a tool for delaying : patents. The other problem with the pre-grant provision is , that the challenger does not have all the details available to contest the patent. In such a situation, challenges are likely to be ambiguous. making them liable to rejection. which would defeat the very purpose of this clause. Post-grant provision has no such problem as complete information on a patented product is available, making the challenges and the defence more informed. Moreover, there is no danger of competition delaying a patent. The major shortcoming of the post-grant challenge is that remedy is available only through courts, which makes redressal a lengthy process. In the case of bad patents, the delay allows the patent holder to enjoy a wrongful monopoly. This is of particular concern in India given the time-taking judicial process.

The GoM has taken the middle path by deciding to allow both kinds of challenges. However, now it needs to ensure that concerns of both parties are accommodated. In the case , of pre-grant challenges, a dearly defined time limit for borl1 j' challenges and the subsequent decision by the patent authority is in order. In the event of patent office upholding a patent. the challenger could be allowed to approach the courts. However, in that case. the Act must dearly prevent courts from granting a stay on patent or the very objective I of making the pre-grant opposition time-bound would be ~ defeated. As to post -grant challenge dragging on in courts, J the only way out is to revamp the entire judicial mechanism, or set up fast -track courts for patents.


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Category Intellectual Property Rights, Other Articles by - P.V.Poornima