It is a common worry for applicants. The application is finally published, the team has planned a launch, and then a third party files an opposition. This is not unusual in India. In fact, the law creates two distinct windows to challenge patentability: one before grant and another after grant. Recent court orders have also stressed that timing matters, for example when the Delhi High Court clarified that a pre-grant opposition cannot be entertained after the Controller has already signed the grant order. This was reiterated in Vertex Pharmaceuticals v. Controller General of Patents (Delhi High Court, 2025).
Two statutory windows: pre-grant and post-grant opposition
Under Section 25 of the Patents Act, 1970, any person may oppose at the pre-grant stage any time after publication and before grant. Separately, any person interested may file a post-grant opposition within 12 months from the date of publication of grant in the Patent Journal. The grounds are substantially identical in both stages, and include lack of novelty, obviousness, non-patentable subject matter under Section 3, insufficiency of description, wrongful obtaining, failure to disclose Section 8 information, and non-disclosure of biological material source, among others.
Point | Pre-grant opposition | Post-grant opposition |
Who can file | Any person | Person interested (inclusive definition) |
When | After publication, before grant | Within 12 months of publication of grant |
Form | Form 7A | Form 7 |
Filing fee (2024 Rules) | ₹4,000 for natural person/startup/small entity/education institute, ₹20,000 for others | ₹8,000 for natural person/startup/small entity/education institute, ₹40,000 for others |
Decision maker | Controller (with prima facie screening) | Controller, after recommendations of the Opposition Board |
Pre-grant opposition, in practice
Who can file? Anyone, including competitors, civil society groups, or researchers.
When and how? After publication under Section 11A and before grant, using Form 7A with a statement, evidence, and optionally a hearing request. The Controller considers a pre-grant representation only if a request for examination has been filed for that application.
Prima facie filter. Since the 2024 amendments, the Controller first checks whether the representation makes out a prima facie case. If not, the Controller rejects it by a brief speaking order, and if the opponent has asked for a hearing, that hearing is afforded before rejection. If a prima facie case exists, the applicant is notified and has two months to file a reply with evidence, after which the Controller hears both sides and passes a reasoned order.
Timing trap applicants must know. Once the Controller has signed the order granting the patent, a pre-grant opposition filed thereafter is not maintainable, even if website upload or certificate generation is delayed. This flows from Dr. (Miss) Snehlata C. Gupte v. Union of India (Delhi High Court, 2010 and 2012) on the date of grant being the date of the Controller’s order, a position reaffirmed in Vertex (2025).
If a pre-grant is rejected, what next? The Delhi High Court in UCB Farchim SA v. Cipla (2010) indicated that writ petitions should not ordinarily be entertained where an adequate statutory remedy exists. If the opponent is a “person interested,” the appropriate course is typically a post-grant opposition or a revocation action, not a constitutional writ.
Post-grant opposition, in practice
Who is a “person interested”? Section 2(1)(t) defines it inclusively as a person engaged in, or promoting, research in the same field. Courts have read this to include parties with a direct, present and tangible commercial interest affected by the patent. Ajay Industrial Corporation v. Shiro Kanao (Delhi High Court, 1983).
Procedure and the Opposition Board. A post-grant opponent files Form 7 within 12 months of the publication of grant. The Controller constitutes a three-member Opposition Board to examine the notice, the patentee’s response and evidence, and the opponent’s rejoinder. The Board issues written recommendations, after which the Controller hears both sides and maintains, amends, or revokes the patent. Crucially, in Cipla Ltd. v. Union of India (Supreme Court, 2012), the Court held that the Opposition Board’s recommendation must be furnished to the parties to satisfy natural justice. Later High Courts have emphasised that the recommendation is persuasive, not binding, but it remains a foundational document that must be properly considered.
Timelines and fees. The 2024 Rules updated the fee schedule. The notice of post-grant opposition fee is now ₹8,000 for natural person/startup/small entity/education institute and ₹40,000 for others. Pre-grant filing attracts ₹4,000 and ₹20,000 respectively, introduced for the first time in 2024.
Strategy note. If a competitor files a post-grant opposition, can they simultaneously file a revocation and a counterclaim in an infringement suit? The Supreme Court in Dr. Aloys Wobben v. Yogesh Mehra (2014) required election of remedies to avoid multiplicity of parallel validity attacks. Courts and commentators read this to mean a party should not pursue multiple concurrent tracks against the same patent. Choose the most effective route for your case posture.
Common founder questions, answered within the workflow
Can a pre-grant opponent be anonymous or a proxy?
The law requires a named representation in Form 7A, with a copy served on the applicant. Allegations of “benami” or proxy filings have surfaced, but the Patent Office expects proper particulars, and Controllers have scrutinised locus and substance. Practically, treat any compliant representation seriously and respond on merits.
Will I always get notice of a pre-grant opposition?
Not automatically. You are notified after the Controller finds a prima facie case. If there is none, the representation can be rejected at the threshold with reasons, without dragging the applicant into a needless contest.
What if we miss the 12-month post-grant window?
The post-grant window closes, but a revocation under Section 64 remains open to a “person interested”.
Where do appeals go now that IPAB is gone?
After the Tribunals Reforms Act, 2021, appeals under Section 117A lie to the High Court with territorial jurisdiction over the appropriate Patent Office. Several High Courts, including Delhi, have specialised IP Divisions that hear these matters.
Checklists that actually help
Before the grant, to reduce opposition risk
Track publications in the Patent Journal and industry forums that might surface prior art, then address them squarely in remarks.
Ensure complete Section 8 disclosures and robust support in the specification, especially for enablement and best method, since both are frequent opposition grounds.
If you receive a pre-grant notice
Map each ground to evidence, including expert declarations and claim charts.
Use the 2-month window effectively, and keep amendments focused on solving the precise objection without unduly narrowing commercial value.
If your patent is opposed post-grant
Ask for, and read closely the Opposition Board recommendation, then prepare for the hearing with a point-by-point rebuttal.
Remember the Board is not the final word, but Controllers are expected to engage with it meaningfully in their final orders.
If you need to appeal
File a prompt, well-structured Section 117A appeal to the correct High Court. Consider whether a limited amendment might resolve issues faster than a long appellate cycle.
