Contrary to pre-grant opposition, post-grant opposition requires a substantially different procedure. As the name implies, post-grant opposition is filed once the patent is granted, by sending a notice of opposition to the Controller of Patents, under Form 7. In accordance with Rule 56 of the Patent Rules, 2003, the Controller is required to set up an Opposition Board, following the receipt of the aforementioned notice.
A total of three members who are deemed fit by the Controller comprise the Opposition Board. One person from amongst the three is nominated by the Controller to chair the Board. As a general practice, Patent Examiners are appointed as members of the Opposition Board. However, the Examiner of the application for the opposed patent, shall not be a part of the Opposition Board that is set up for that application.
The Controller transfers all the relevant documents to the Board and directs it to conduct a thorough examination of the opposition raised. The process entails the evaluation of the notice of opposition as well as the documents and evidence produced by the Opponent and the Patentee under Rules 57 to 60, in the support of their respective claims. Subsequently, the Opposition Board is required to prepare a report enlisting its recommendations with appropriate justification for each ground stated in the Opposition Notice. The report shall be delivered to the Controller of Patents within three months from the receipt of the above-stated documents.
After providing both parties with an opportunity of being heard, the Controller has the authority to preserve, amend or rescind the Patent. Previously, the IPAB would entertain appeals against the decision of the Controller. However, since its dissolution, all such appeals can now be made to the High Court, within 3 months from the notification of the Controller’s decision.