2016-11-18
A patent grants exclusive rights to the owner to use it as the owner sees fit. However, if you suspect that someone is encroaching on your patent, you can take action. Patent infringement is caused when a patented invention is duplicated, used or sold without permission from the patent holder. In such cases, the patent holder can sue the party who violated patent rights.
Depending on the situation, there are ways in which you can protest against a patent or patent application.
Prior Art/Protest
Anyone can file a protest against a patent application while it is still pending. The patent application is published after a few months of filing. You can protest the application by filing prior art or simply protest against the application or any of its claims. Any evidence that proves your invention already exists is a Prior art. Prior art does not necessarily have to be an existing product. It can be anything that was previously shown or described, possessing similarities to your invention.
A prior art can be filed before, during or after the inspection of the application, but before the issue of the patent. The patent application is not automatically examined. The applicant has to formally be requested for examination. If filed before inspection, a prior art is considered only after the examination request is received.
Prior art or protest filed by a third party will be acknowledged. But, they will have to monitor the patent application to gain information on its effect.
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Appeal for re-examination
Once a patent is issued, anyone including the third party can request a re-examination. The appeal can be made only on the basis of prior art anytime during the term of the patent. After the request is received, a re-examination board is set up by the Commissioner of Patents. The Commissioner considers the request. If the request raises questions on the patent, the patentee is notified. The board is eligible to issue a certificate of cancellation, confirmation or incorporations of the amendments proposed by the patentee. The patentee can appeal the decision of the board at the Federal Court.
Plea against Patent Infringement in the Federal Court
Another way to challenge a patent is to file a petition at the Federal Court to declare the patent as invalid. This is a costlier alternative as compared to the others because it may require you to pay a portion of legal costs to the patentee. The patentee in turn can counterclaim for infringement which suggests the level of complexity and risk in the proceedings.
Challenging a patent application or patent impeachment is a complicated process; hence it is vital to consider the costs, time involved and implications of the result. Yet, it is critical that you take action if you suspect that your patent has been infringed or copied. Before opposing it is always advisable to take help of legal experts who have knowledge in the area and can come up with the best possible options for you.
