P sued D for patent infringement and other reliefs. P's patent in India (307249) was granted on 12-3-2019. Within a month of the grant, P immediately sued D.
D's argument for suit's dismissal was, "...It is claimed that the rights of the patent holder do not crystallize on mere grant of patent but do so only after the lapse of one year period provided for giving a notice of opposition under Section 25(2) of the Patents Act.".
D relied on ALYOS WOBBEN (2014) 15 SCC 360 that concerns parallel remedies of opposition (S.25(2)) and revocation (S.64(1)). The court distinguished ALYOS on the ground that "Supreme Court also noted that it was unlikely and quite impossible that an infringement suit would be filed while the proceedings under Section 25(2) of the Patent Act are pending or within a year of the date of publication of the grant of a patent.", while here an infringement action had begun quickly after patent grant, so this was a different situation.
The court dismissed D's application under O.7, r.10 & r.11.
P.S. - Why patent rights should not "crystallise" for post-grant 1 year to await any possible opposition per ALYOS WOBBEN? Wait 3-4 years for a grant if lucky, then wait 1 year for any opposition, so assertion only ~5 years after filing?
D's argument for suit's dismissal was, "...It is claimed that the rights of the patent holder do not crystallize on mere grant of patent but do so only after the lapse of one year period provided for giving a notice of opposition under Section 25(2) of the Patents Act.".
D relied on ALYOS WOBBEN (2014) 15 SCC 360 that concerns parallel remedies of opposition (S.25(2)) and revocation (S.64(1)). The court distinguished ALYOS on the ground that "Supreme Court also noted that it was unlikely and quite impossible that an infringement suit would be filed while the proceedings under Section 25(2) of the Patent Act are pending or within a year of the date of publication of the grant of a patent.", while here an infringement action had begun quickly after patent grant, so this was a different situation.
The court dismissed D's application under O.7, r.10 & r.11.
P.S. - Why patent rights should not "crystallise" for post-grant 1 year to await any possible opposition per ALYOS WOBBEN? Wait 3-4 years for a grant if lucky, then wait 1 year for any opposition, so assertion only ~5 years after filing?
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