Page 195 - DMGT401Business Environment

Business Environment

Notes be launched within four months from the date of advertisement of the acceptance of
complete specification. The Grant of patents could be opposed on the grounds included:

(a) the invention for which the patent has been claimed was publicly known or publicly
used in India,
(b) the invention is obvious and does not involve an inventive step,

(c) the invention is not patentable under the Patent Act 1970,
(d) the complete specification wrongly mentions the source or geographical origin of
biological material used in the invention, and

(e) the invention on which the patents is claimed forms part of the traditional knowledge
whether in India or elsewhere.
The 2003 Amendment introduces two sets of changes to the condition relating to opposition
to the grant of patents. First the pre-grant opposition of the 1970 act is proposed to be
changed to a pre-grant representation and secondly the pre-grant opposition has been
replaced by post-grant opposition. Post Grant opposition, which has been provided in
Section 25(3) of the Patents Act 1970, allows any interested person to oppose the grant of a
patent before the expiry of one year from the date of grant of patent. But while change in
the system of opposition has been included, the ground for opposition has been left
unchanged. The grounds for pre-grant opposition in the 1970 Act have been retained in the
post-grant opposition of 2003 Amendment and two sub-clauses (j) and (k) have been
added.
Pre-grant representation included in Section 25 (I) can be made to the Patent Controller
after the publication of the patent application on the ground of patentability, including
novelty, inventive step and industrial application.

Example: Two other grounds for this representation have been provided, viz., non-
disclosure or wrongful mentioning of the source and geographical origin of biological material
used in the invention and anticipation of the invention by the knowledge, oral or otherwise
available within any local or indigenous community in India or elsewhere.
Section 25(2) says that person making the pre-grant representation cannot be a party to the
proceedings, which would weaken the case of those making the representations. The
above mentioned implies that the pre-grant opposition that the Patent Act, 1970 has
provided thus far would be de facto replaced by a post grant opposition.

8.2.2 Salient Features of the Third Amendment to the Patent Law

1. Extension of product patent protection to all fields of technology (i.e., drugs, food, and
chemicals).
2. Deletion of the provisions relating to Exclusive Marketing Rights (EMR) and introduction
of a transitional provision for safeguarding EMRs already granted.

3. Introduction of provision for enabling grant of compulsory licence for export of medicines
to countries that have insufficient or no manufacturing capacity, and to meet emerging
public health situations (in accordance with Doha Declaration on TRIPS and Public Health).
4. Modification in the provision relating to opposition procedures with a view to streamlining
the system by having both pre-grant and post-grant opposition in the patent office.

188 LOVELY PROFESSIONAL UNIVERSITY