Procedural Delay and the Patent Term: Is There a Case for Extension in India?

Authored by Barath A S

Introduction

A patent is an asset rewarding the time, effort and investment behind an invention. In return for disclosing the invention to the public, the government grants a period of exclusivity over its commercialisation. Under the Patents Act, 1970, that period is twenty years. The question that has recently come into focus is whether the patentee actually receives those twenty years in any meaningful sense.

On 29 September 2026, the Hon’ble Supreme Court issued notice in Gunjan Sinha @ Kanishk Sinha and Anr. v. Union of India and Anr., a special leave petition seeking an extension of patent term to compensate for the years lost to delay in grant. The Court has appointed an amicus curiae and listed the matter on 26 October 2026. In view of the renewed debate this has prompted, this article analyses the Indian position on patent term and the question of whether the principle of extension of term is needed in the Indian patent regime.

TRIPS and India on the Life of a Patent

As originally enacted, the Patents Act, 1970 provided a term of fourteen years. For process patents relating to food, medicines and drugs, the term was the shorter of five years from sealing or seven years from filing. The Patents (Amendment) Act, 2002 brought the term to twenty years from the date of filing to align Indian law with India’s obligations under the TRIPS Agreement, as is now enshrined under Section 53 of the Patents Act, 1970.

Two provisions of TRIPS bear directly on the question. Article 33 requires that the term of protection “shall not end before the expiration of twenty years counted from the filing date”. It sets a floor, not a ceiling, and leaves Member States free to provide a longer term. Article 62.2 goes further and states that where a right is acquired through grant, Members must ensure that the procedures permit grant within a reasonable period of time, so as to avoid unwarranted curtailment of the period of protection. Article 62.2 thus codifies a principle protecting the term of protection outlined under Article 33 by requiring Member States to prevent procedural delays.

When Does the Right of a Patentee Start?

While the term of twenty years starts from the date of filing, the full bundle of rights of a patentee as codified under Section 48 does not accrue on filing. Section 11A(7) provides that, from the date of publication until grant, the applicant has the like privileges and rights as if a patent had been granted on the date of publication. However, the proviso to Section 11A(7) bars the applicant from instituting any suit for infringement until the patent is granted.

The position in India is therefore layered in that the term starts from filing, limited rights accrue at publication, and the entire breadth of rights including enforcement is available after grant.

Where Procedural Delays Occur

In India, procedural delays in grant can arise from both the side of the applicant and the Patent Office. On the applicant’s side, they may result from cases such as deferring the request for examination until the end of the 31-month period or seeking extensions of time in the various permitted stages of the patent prosecution process. On the Patent Office’s side, they may result from the time taken to take up an application for examination after the request is filed and ultimately to issue the first examination report, to fix and conduct hearings after the applicant has responded, and to pass a final order.

The upshot is that delay before and around grant is not a single phenomenon. Part of it lies within the applicant’s control, part with the Patent Office, and another part may also lie with authorities whose approvals the law requires, such as the marketing authorisation from the Central Drugs Standard Control Organisation, in case of pharmaceutical products. All of it runs against a term that commenced on the date of filing.

Courts’ View on Delays

The courts have repeatedly disapproved of delay attributable to the Patent Office. In Dolby International AB v. The Assistant Controller of Patents and Designs (2023/DHC/001854), the Delhi High Court stated that the life of a patent is reckoned from the date of application, not the date of grant. Unreasonable delay in grant therefore reduces the residual life of the patent, which the Court observed could itself discourage inventors from pursuing new methods, products or processes. In BASF SE v. Joint Controller of Patents (IPDPTA/5/2024), the Calcutta High Court held that, since the term runs from filing, undue delay violates natural justice and defeats the object of the Act, and set aside a refusal on that ground. In Procter and Gamble Company v. Controller of Patents and Designs (2023/DHC/8876), where the application was refused more than four years after a notice under Section 8(2), the Delhi High Court observed that the Patent Rules are designed to avoid unnecessary delay and remanded the matter.

Procedural History of the Present Special Leave Petition

The petitioners held a patent for a fuel cell system and an eco-friendly vehicle, filed on 2 May 2005 and granted in December 2012. Because the term ran from filing, the patent expired in May 2025, leaving roughly twelve years of enforceable life. The petitioners challenged the vires of Section 53 and sought an extension of term as compensation.

The Single Judge (WPA No. 8691 of 2023) of the Calcutta High Court noted that although Article 33 of TRIPS leaves it open for the term to exceed twenty years, Parliament, in its wisdom, chose to fix it at twenty years from filing, which was within its legislative competence. The Court held that conferring limited rights from publication, without the right to sue, is entirely within legislative discretion and that a court’s notion of unreasonableness cannot be a ground to hold a statute ultra vires. Further, the Court stated that in the matter of legislations, the Parliament primacy and the Court’s perception cannot prevail over it. Section 53 was accordingly held intra vires the Constitution.

On appeal, the Division Bench (MAT 903 of 2024) of the Calcutta High Court, affirmed the decision of the single judge where it found that nothing was established to declare Section 53 ultra vires to the Constitution, and held that to legislate, or to direct the Government to legislate in a particular manner, is not within the domain of a court under Article 226.  Referring to the committee report in Nitto Denko Corporation v. Union of India (WP(C) No 3742 of 2013), where the committee so constituted therein to examine the need for patent term extension in India, observed that the said proposal is not conducive to India as the monopoly of 20 years itself is considered too long, the Court observed that such issues are best left to the legislative minds, since the duty of the Court is to interpret the law and not to enact it.

Rights Without Remedy: Loss of Enforceable Term

From publication, the applicant holds rights as if a patent had been granted, but the proviso to Section 11A(7) bars any suit for infringement until grant. Where the grant is delayed by several years, by the time the patentee can sue, the infringer’s products are in circulation, prices have fallen and the customer base has shifted in favour of the infringer.

An infringement suit after grant may yield damages, but it cannot immediately restore market position. Regaining it takes time, and that time comes out of whatever term is left. Where grant itself has taken several years, the patent may well expire before the patentee recovers the market it was meant to secure. Therefore, where grant is delayed, the period during which the patentee can effectively exclude others may be considerably shorter than the twenty-year term.

Conclusion

Whether the Indian patent regime requires extension of term of a patent, for the term lost on account of procedural delays, is a policy question that merits due consideration. Where delay is attributable to the Patent Office, it becomes pertinent to ask whether the patentee ever received the full period of exclusivity that the statute promised. If it was not, the object of the patent system is defeated, which could consequently affect the drive for innovation.

However, against this contention stands the public interest in timely competition. Any extension of term postpones the point at which competitors, including generic manufacturers, may enter the market, with consequences for the price and availability of the products concerned. This consideration is most pronounced in the case of medicines, where the entry of generic manufacturers lowers prices to the benefit of the public. A sound approach must therefore accommodate both considerations.

Article 62.2 of TRIPS obliges Member States to grant patents within a reasonable period precisely to avoid curtailment of the term. The first and most direct means of meeting this obligation lies in streamlining procedures and timelines at every stage of prosecution. The Patent Office has made continuing efforts to this end, including the recruitment of additional examiners, the shortened timelines introduced by the Patents (Amendment) Rules, 2024, and the expedited examination route under Rule 24C. Sustained progress on this front would address much of the concern at its source, without any change to the term itself. The same approach of streamlining procedures and reducing delay applies equally to other statutory authorities wherever their processes contribute to delay.

However, in situations where delays are attributable to the Patent Office, the statutory scheme can support a narrow mechanism of term extension. Such an extension could exclude any delay of the applicant’s own making, be capped, and remain fully subject to safeguards such as compulsory licensing, opposition and revocation to protect the public interest.

A measured approach of this kind would allow the twenty years that the statute promises to carry their intended meaning, without disturbing the balance between exclusivity and access that the Indian patent regime has deliberately struck.