For the purposes of this post, let’s have a few characters- Brin Panna is the protagonist and Peeve Jobs is the antagonist (Poltergeist, may be). And let’s call the story- “The Obvious Indian Patent Story” and this chapter of the story as “Brin Panna & The Jungle of Oppositions”…
Brin Panna- The Ideal Indian
Our hero Brin Panna swears by “Indian values” such as honesty, a Lutheran work ethic and progress through innovation. He runs a home-grown “swadeshi” entity fully “manned” by women, which manufactures spindles, especially for the sacred Indian fabric, “Khadi“.
Panna’s Tryst With Destiny
At the stroke of the midnight hour, on the 15th of August, 2007, when the world is asleep, Brin Panna has a “Eureka” moment (basically, he’s having a bubble bath…) and comes up with an idea for a spindle which spins stronger yarn and produces softer khadi. The limitation in the prior art was that loosely spun yarn was soft, but not strong enough, and tightly spun yarn was strong, but not soft enough.
So, Panna devises a method of spinning which produces soft and strong yarn, and a spindle based on the method. He decides to name the technology “Spin-sutra” for the Indian market and “Spin-ster” for the western market.
Panna’s new Indian values tell him that this technology should be distributed with both arms, but not as alms, to the Whole Wide World; the die-hard patriot in Panna asks him to learn from the mistakes of the past, and says an Indian should be seen as a pioneer and promoter of this technology at conceptual and commercial levels. So, he files for an Indian patent and a PCT application as well for patents in Pakistan, China, Bangladesh, Nepal and Sri Lanka, among other friendly nations.
Peeve Jobs- At Work Round The Clock
Enter Jobs, Peeve Jobs- a foreign national who runs an entity called “The P Buster”. Jobs’ business model is simple- he is funded by competitors of Indian patentees to bust Indian applications/patents or subsequently frustrate the purpose of the grant of the patent in one way or the other.
It works well both ways for Jobs and his benefactors- Jobs gets the money and the vicarious pleasure of making others’ lives miserable; as for Jobs’ donors, the logistics of opposing a patent/application have been outsourced effectively.
Jobs is now funded generously by his benefactors to invest his energies and resources in making Brin Panna’s life miserable. Unfortunately for Panna, the Indian Patents Act, 1970 hands enough and more ammunition to Jobs as he clinically and meticulously goes about his job.
1. First, Jobs can employ the pre-grant opposition mechanism without spending a shilling on the “representation” and there’s no limit on the number of representations he can make under the Act.
2. Jobs gets particularly aggressive when the value of the invention is high, such as Panna’s “Spin-ster” technology; it is exactly in situations like these that Jobs feels he owes a lot to the drafter of the Indian Act, because the Act does not bar him from filing as many oppositions as there are grounds under Section 25(1). He really doesn’t need to bother if every ground of opposition is even relevant to the patent application in the first place
3. And not just that, he can use every ground of opposition multiple times citing different pieces of prior art (but for timely interventions by erudite sides of the Court). Added to that, Jobs may seek a hearing as well in addition to the written representation and evidence.
4. Jobs can also take joy from the fact that there is no specific time limit for the disposal of each opposition.
5. Before we forget, Jobs can have fun right until grant of the patent, which he knows, will take its own sweet time thanks to other chums of Jobs at work, who contribute their mite/do their bit to increasing the docket of pending applications.
So Jobs gets down to work with an energy that would put Lucifer, the Devil himself, to shame, and files one opposition after another. Panna, on the other hand, goes through a harrowing period, because what was intended to be a system of opposition to ostensibly further public good, has become a lethal tool of inquisition to keep the good away from the public.
Jobs earns a formidable reputation as the defender of public interest- He and He alone stands between Panna’s all-devouring sinister “Spin-ster” technology and public good. Panna realizes that it’s perfectly alright for Jobs to make money out of opposing his patents/applications, but what is bad is Panna earning out of his own honest efforts.
But Panna still holds on to his faith in the system and somehow manages to see his application through. An Indian patent “120420” is granted in the fag end of 2011. Panna thinks his faith in the system has finally paid off…or so he thinks
Panna doesn’t realize that the Indian Act (Section 13(4)) does not impute any presumptive validity to a patent even if the grant is the consequence of the rejection of a pre-grant opposition. This basically means, that Jobs can continue to torment Panna for a good one year from the date of publication of grant of the patent, using the very same grounds that were raised in the pre-grant opposition.
Oh again, Jobs may not be the only one who’s hell bent on raising hell for Panna.
Panna somehow again manages to save his patent only to realize that the Act still does not impute presumptive validity to his patent, which has not been merely registered, but has been granted pursuant to rigorous examination (atleast on paper).
Jobs comes up with yet another way of preventing Panna from enjoying his rights peacefully. He deliberately infringes Panna’s patent “120420” and files a counterclaim of revocation in response to Panna’a suit for infringement.
The opposition Agnipareeksha rule evolved by Courts may come to Panna’s rescue, but does this necessarily translate to grant of an interim injunction against Jobs? We’ll discuss that in the next post.
One is not against the system of oppositions, I just think the balance needs to be set right, particularly considering Indian conditions. It is ironic that India chose to bring in a pre-grant opposition system, when most jurisdictions were phasing it out.
It is also ironic that our legislature deemed it necessary to provide for a certificate of validity under Section 113 (when the validity of a patent has been contested and upheld), but has not deemed it necessary to make such a provision for an application that has survived an opposition proceeding.
The earlier system of opposition, to me, was much more rationalized; under the earlier system, oppositions were invited after the Patent Office had made up its mind to grant the patent. Once the option of opposing the application had been exhausted, the only way to revoke a patent was to file a revocation proceeding under Section 64.
Contrast that with the situation today where an application and the subsequent patent are buried under layers and layers of scrutiny, with the already prevalent air of uncertainty around anything that relates to patents, be it office practice or substantive law, complicating the situation.
Funnily, despite such a rigorous procedure, the Act expressly denies presumptive validity to a patent. Consequently, Courts have been forced to read in presumptive validity of some sort for a patent which has survived oppositions.
Instead of encouraging and incentivising innovation, these multiple layers of oppositions could end up robbing the system of patents of its purpose. A few ways of dealing with this could be:
1. To either do away with pre-grant opposition and replace it with post-grant opposition and subsequent imputation of validity or;
2. To retain pre-grant opposition and impute validity after the application survives the opposition, and doing away with a post-grant opposition.
The second option may be much more feasible and practical because it would attach sanctity to grant of the patent. After all, there ought to be a difference between mere registration and grant pursuant to examination/opposition.
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