Delaying grant of a competitor's patent – strategic or nonsense?
Livemint reported late last week that the association of innovator pharmaceutical companies in India (‘OPPI‘), has recently reiterated its demand for removal of the pre-grant patent opposition provisions from India’s Patent Law.
The argument is that it has been widely misused by interested parties to unnecessarily delay the patent application process.
So, when is it strategically useful to delay the grant of a competitor’s patent? Here are some thoughts, what would you add?
- Eliminate the opponent’s ability to obtain an injunction using the patent in question. (Damages will still be available in most countries from the date of publication.)
- In the United States (Pharmaceutical) Orange Book context, delaying grant of an opponent’s patent (eg. with Rule 99) would mean the patent is not listed in the Orange Book and you don’t have to file against it.
- To decrease the value of the competitor’s IP portfolio. (Don’t even think of doing this unless you have very good reason to.)