Ex Ante Validation of Patents
This chapter justifies pre-grant oppositions as an efficient method of testing the ex ante validity of patents. An important feature of the pre-grant opposition is that it allows the public to participate in the grant of a patent. The premise of pre-grant opposition lies in the assumption that the competitors of the applicant are more likely to be more informed than the examiners in the patent office and are therefore in a better position to present prior art, especially in patents involving high-technology. Pre-grant opposition also paves the way for open prosecution of patents and incorporates a system of peer review. This chapter illustrates how pre-grant opposition proceedings test the continuing validity of the patent as opposed to its threshold validity. The United States’ thorny relationship with pre-grant opposition proceedings is also examined. It examines pre-grant opposition proceedings in India and summarizes the empirical findings on pre-grant opposition decisions in India.
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