Unravelling ambiguities in the date of a patent grant

The date a patent is granted determines when a pre-grant opposition can be filed. Section 25 (1) of the Patents Act, 1970, provides a window – starting from the date of publication of the application till the date of grant – within which a pre-grant opposition can be filed. Accordingly, the date of grant of patent becomes sacrosanct for pre-grant opposition.

Section 43 of the act mandates that if an application for a patent is found to be in order “the patent shall be granted as expeditiously as possible with the seal of the patent office and the date on which the patent is granted shall be entered in the register”. After grant of patent the controller is required to publish the grant along with the application, specification and other documents.

Rules governing the opposition proceedings, particularly rule 55(5) of Patent Rules 2003, authorize the controller to refuse or grant a patent or set conditions for compliance by the applicant. Under rule 55(6), while considering pre-grant opposition, the controller may either reject it and grant a patent or accept it and reject a patent within a month of the date of completion of the proceedings. The legislative intent is that as soon as the decision regarding the grant of a patent is made it needs to be granted under the seal of patent office.

Abhai Pandey is a lawyer with Lex Orbis IP Practice, a New Delhi-based firm.