Summary: The lifespan of your patent just got clearer. Understand what the Calcutta High Court’s ruling on Section 53 means for your innovation.
A significant challenge faced by Indian patent applicants is the delay in the prosecution and grant of patent applications. This delay has time and again sparked debate about whether or not the time taken by the Indian Patent Office (“IPO”) to grant a patent should be excluded from the patent term.
Delay frowned upon by Indian Courts
Indian courts have consistently directed the IPO to consider that a patent’s life begins from the application date, not the grant date, and that, therefore, the IPO must dispose applications expeditiously. Unreasonable delays in granting patents can significantly reduce their residual life, effectively discouraging inventors from developing new and innovative methods, products, or processes.
This view was recently reiterated by the Calcutta High Court in BASF SE vs. Joint Controller (IPDPTA/5/2024) (decision dated 07.03.2025), in which it held that patent exclusivity under Section 53 of the Patents Act, 1970 (“the Act”) lasts 20 years from filing. The Court said that undue delays in patent processes violate natural justice and undermine the Act’s purpose, and that delay itself is grounds to set aside the refusal order of the Controller of Patents.
Validity of Section 53
This note examines another dispute before the Calcutta High Court where the validity of Section 53 was challenged.
Aggrieved by delays in the grant of their patent application, the appellants in Gunjan Sinha @ Kanishk Sinha and Anr. v. Union of India & Ors. (WPA No. 8691 of 2023) challenged the constitutional validity of Section 53 of the Act. A Division Bench of the Calcutta High Court, in a judgment dated 22.04.2025 dismissed the intra-court appeal that challenged the order of a Single Judge, which had upheld the constitutional validity of Section 53.
Brief facts
The genesis of the dispute lies in a patent application filed by the appellant in May 2005, which was eventually granted in December 2012, with a validity of 20 years from the date of application. Subsequent assignments led to the present appellants holding the patent. Aggrieved by the delayed patent grant, among other concerns with the Act, the appellants challenged the validity of Section 53.
The core contention, according to the appellants, was the inconsistency between Section 53 and Section 11A(7) of the Act. Section 53 stipulates that the term of a patent is 20 years from the date of application. At the same time, Section 11A(7), introduced by the 2005 amendment to the Act, grants applicants certain rights and privileges as if the patent had been granted from the date of publication of the application, with the caveat that infringement proceedings cannot be initiated until actual grant.
The appellants argued that if the patent term commences from the date of application under Section 53, the period between the application’s publication and the eventual grant – during which the patentee cannot sue for infringement – effectively diminishes the exploitable term of the patent. They further contended that the requirement of paying renewal fees even for the period before the patent was granted amounted to “double jeopardy”. Relying on Delhi High Court judgements, the appellants sought either the rescission or amendment of Section 53 to align it with Section 11A(7).
However, the Indian government argued that Sections 53 and 11A(7) operate in distinct phases of the patent process and serve different purposes. Section 11A(7) aims to provide provisional rights to the applicant upon publication, while Section 53 defines the overall term of the patent. Consequently, these provisions are independent and not contradictory.
The decision
The Division Bench concurred with the Indian government, and upheld the validity of Section 53. It observed that Section 11A(7) was introduced to offer certain interim protections to an applicant after publication, safeguarding interests during the examination process without granting full patent rights prematurely.
The judgement emphasized that patent rights are statutory in nature, and an infringement action is maintainable only after the patent is granted and is in force. Section 53, falling under the chapter concerning the “Grant Of Patents and Rights Conferred Thereby,” clearly defines the duration of this granted right. The Court found no inherent conflict between the two sections under consideration, as they operate in different temporal and functional spheres of the patent lifecycle.
The Bench also addressed the appellants' reliance on foreign jurisdictions like the USA, where Patent Term Adjustment (PTA) compensates patentees for delays in the approval process. The Court referred to a report submitted by a committee constituted in Nitto Denko Corp v. Union of India (WP (C) No. 3742 of 2013 and WP (C) No. 3756 of 2013), which had considered the feasibility of such a mechanism in India. That committee had said that extending patent terms to compensate for administrative delays might not work in India, where a 20-year monopoly is already considered substantial, and technologies become obsolete rapidly. The committee also noted that applicants are free to seek regulatory approvals and pursue commercialization while patent applications is pending.
The High Court, on its part, held that it is the legislature’s prerogative to introduce mechanisms like the PTA or to amend patent law. It said that it is not within the purview of a court exercising writ jurisdiction to direct the government to legislate in a particular manner; and that the court’s role is to interpret the existing law, not to enact it. In conclusion, the Court reaffirmed the constitutional validity of Section 53 of the Act.
What lies ahead?
Delays in patent prosecution and its consequent impact on effective patent term remains a valid concern, but there are equally persuasive arguments on both sides. On the one hand, applicants feel that the statutory term of a patent (20 years from filing) is eroded by the time taken to examine and grant the application. This delay reduces the effective period for the patent holder to enjoy exclusive rights and recoup investments, especially in rapidly evolving technological fields. Applicants believe they they should not be penalized for the IPO’s administrative inefficiencies.
On the other hand, the standard patent term of 20 years seeks to incentivize innovation, while ensuring that technology eventually enters the public domain. Adjusting patent terms based on prosecution delays could complicate the legal framework, and also potentially lead to longer periods of market exclusivity, which might run counter to public interest.
That said, several factors contribute to delays in the prosecution process, including the volume of applications, the complexity of inventions, the availability of examiners, and various regulations and procedures. The Indian government continues to actively take steps to address challenges, through increasing manpower, streamlining processes, and deploying digital infrastructure to expedite patent prosecution. It has brought down the average patent pendency time in India from 52 months in 2018 to 49.5 months in 2023 (as per NASSCOM’s PATENT PULSE 2025). With about 400 additional examiners scheduled to be added soon, along with several controller promotions, the lag in prosecuting patent applications is likely to diminish to some extent, and Section 53 woes may be less concerning to many.
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