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In January 2024 the Indian Patent Workplace (IPO) rejected a pre-grant opposition filed by Agro Tech Meals and granted a patent in favour of Francois Berthault for a popcorn field invention. It was a closely contested matter; Agro Tech relied on a number of grounds, together with prior publication, prior use, obviousness and insufficiency underneath Part 25(1) of the Patents Act to problem the patentability of Francois Berthault’s invention.
Case background
The invention pertains to a novel field for packaging popcorn, in that it has a hooking system to shut it. This includes a tab linked to the free fringe of a flap and a reduce made in one other flap, into which the tab will be inserted.
Agro Tech relied on 11 citations to problem the novelty and inventiveness of Berthault’s invention, alleging {that a} mixed studying of those paperwork would educate an individual expert within the artwork tips on how to make the claimed packaging gadget.
Each events put ahead detailed arguments within the pre-grant listening to, and the IPO subsequently appointed one other listening to underneath Part 14 of the Patents Act, which each Berthault’s and Agro Tech’s attorneys attended. Berthault vehemently contested Agro Tech’s presence throughout this listening to, arguing that the Part 14 provision solely authorised the applicant to be part of the proceedings, and that the opponent had no proper to take part within the examination course of. Part 14 stipulates:
The place, in respect of an software for a patent, the report of the examiner obtained by the Controller is hostile to the applicant or requires any modification of the appliance, the specification or different paperwork to make sure compliance with the provisions of this Act or of the principles made thereunder, the Controller, earlier than continuing to get rid of the appliance in accordance with the provisions hereinafter showing, shall talk as expeditiously as doable the gist of the objections to the applicant and shall, in that case required by the applicant throughout the prescribed interval, give him a possibility of being heard.
The opponents disagreed and relied upon a single-bench judgment by the Delhi Excessive Courtroom in Natco Pharma v Assistant Controller of Patents & Designs (WP(C)-IPD 2/2023 & CM 2/2023, CM 3/2023), during which it was held that:
The place an opposition is filed to an software searching for grant of a patent, the proceedings turn into adversarial. Due compliance with the ideas of pure justice, within the case of adversarial proceedings, essentially requires each events to be concerned within the proceedings at each stage.
Primarily based on this determination, the opponent contended that it couldn’t be debarred from attending the prosecution listening to.
Berthault identified that this determination was appealed earlier than a Delhi Excessive Courtroom division bench and that the courtroom had stayed the single-bench judgment till the following date of listening to. For the reason that matter was sub-judice, solely the applicant could be authorised to attend the listening to underneath Part 14.
The IPO allowed Agro Tech to be part of the proceedings – although it was barred from making oral or written submissions – and directed the applicant to file its written submissions inside 15 days. Agro Tech additionally filed a written submission, defying the IPO’s directives.
Within the interval between the IPO conducting the listening to and issuing its determination, the division bench determined the Natco matter. It held {that a} patent software’s examination and pre-grant opposition are two distinct and impartial processes, and that the opponent has no proper to intervene within the examination process.
The choice
In mild of the division bench’s judgment in Natco, the IPO rejected the written submission that Agro Tech filed throughout the prosecution listening to. It emphasised that in response to the courtroom’s ruling, the opponent has no locus standi underneath Part 14; the opponent’s proper to a listening to pertains particularly to the illustration stage and doesn’t entitle it to intervene within the broader examination course of. The workplace acknowledged:
Even from a pure justice ideas perspective, a pre-grant opposition is neither adversarial nor contentious. The opponent can’t have the fitting to a listening to throughout the examination course of as a result of the Patents Act doesn’t define such a proper.
Additional, the IPO rejected all grounds for opposition and concluded that an individual expert within the artwork who needs to automate a field closing can’t use the cited paperwork as a result of none of those handled the particular subject of the automated closing of a field. Not one of the cited paperwork described the mix of pushing the flaps in the direction of the within of the field and the form of the reduce to routinely shut it.
Key takeaways
The profitable enchantment in Natco introduced much-needed clarification on the pre-grant opposition course of, and the IPO’s determination on this case highlights {that a} clear distinction between the examination and opposition processes facilitates a extra streamlined and environment friendly dealing with of pre-grant oppositions. That is one more instance of how India’s IP regime is evolving at par with peer jurisdictions.
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