Close patent loopholes Patents Need Legal Support
Article
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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Tags :Intellectual Property Rights