Can a lapsed patent be restored in India?

Once an Indian patent is granted for your invention, it has to be maintained subsequent to the grant. Maintaining a patent includes the task of paying patent renewal fee each year. Failure to pay the renewal fee will result in the patent ceasing to have effect.

The patent renewal fee in India is collected from the 3rd year onwards. Once the patent is granted, the pending renewal fee calculated from the 3rd year has to be paid. Further, the renewal fee for the subsequent years shall be paid before the expiration of the previous year of the patent. For example, renewal fee for the 8th year shall be paid before the expiration of the 7th year of the patent. The renewal fee details are provided below:

Renewal fee – Year

Patent Owner – Natural Person

Patent Owner – Other than natural person

Small Entity

Other than small entity

3 to 6

800

2000

4000

7 to 10

2400

6000

12000

11 to 15

4800

12000

24000

16 to 20

8000

20000

40000

 
As mentioned earlier, failure to pay the renewal fee will result in the patent ceasing to have effect. At a time when the patent ceases to have effect, the patent owner will not be able to enforce the patent. Further, even if the patent is restored, one cannot be held liable for infringement during the period in which the patent had ceased to have effect.
 
If a patent has ceased to have effect as a result of failure to pay the renewal fee within the prescribed time, i.e. before the expiration of the previous year, then the patent owner can request an extension of time to pay the renewal fee. The extended period is not more than 6 months from the date on which the patent ceased to have effect. The Indian Patent Office (IPO) fee for such an extension is INR 480/1200/2400 per month if the patent owner is a natural person or a small entity or other than small entity respectively.
 
In case a patent has ceased to have effect, it is advisable to reinstate it within the above stated 6 months. However, if the patent owner fails to reinstate the patent in this extended period of six months, then the patent owner can take an alternative approach to reinstate the patent. This alternative approach to reinstate is available till 18 months from the date the patent ceased to have effect. In the instant approach, the patent owner will have to mention, in detail, the circumstances which led to the failure to pay the fee, and the IPO may require further evidence. This approach however, is relatively difficult, time consuming and expensive.  
 
In short, we can summarize this article by stating that a patent that has ceased to have effect can be restored by either paying the renewal fee within 6 months from the date on which the patent ceased to have effect, using a first approach, or by paying the renewal fee within 18 months from the date on which the patent ceased to have effect, using a second, more difficult and expensive, approach.
 
We hope you found this article useful.
 
Feel free to write to us at contact@invntree.com if you have any comments, queries or want to avail our services.
 
Best regards,
Team InvnTree
 
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