The Reality of Patent Duration in India
Indian patent law provides for a patent term of twenty years. Section 53 of the Patents Act, 1970 states that every patent shall be granted for a period of twenty years from the date of filing of the application. This aligns with Article 33 of the TRIPS Agreement and reflects the standard adopted across jurisdictions.
In practice, however, the effective duration of a patent in India is often considerably shorter.
Commencement of Term and Accrual of Rights
Although the patent term begins from the date of filing, enforceable rights arise only upon grant. Section 48 of the Patents Act confers exclusive rights on the patentee only after the patent has been granted.
Publication of the application under Section 11A, which ordinarily occurs after eighteen months, does not materially alter this position. While the Act permits a claim for reasonable royalty for infringing acts committed after publication, such claims remain contingent on the patent ultimately being granted and do not offer the certainty associated with enforceable exclusivity.
As a result, the patent term continues to run during a period when the inventor is unable to fully exercise patent rights.
Time Taken for Grant of Patents in India
Patent prosecution in India involves multiple procedural stages. Examination begins only after a request under Section 11B and is followed by First Examination Reports, responses, hearings, and, in some cases, opposition proceedings under Section 25.
For many applications, particularly in technically complex fields, the time between filing and grant extends over several years. In some instances, the delay has been significantly longer.
One example is Roche’s Indian patent for Erlotinib Hydrochloride (Tarceva). The application was filed in 1996, but the patent was granted only in 2007. By the time enforceable rights arose, more than half of the statutory patent term had already elapsed. This timeline is reflected in the subsequent litigation between Roche and Cipla before the Delhi High Court.
Similarly, Novartis’s patent application relating to Imatinib Mesylate (Glivec), filed in 1998, remained under prosecution for nearly fifteen years before being finally rejected by the Supreme Court in Novartis AG v. Union of India (2013) 6 SCC 1. Throughout this period, the patent term continued to run, despite the absence of any enforceable rights and despite the ultimate refusal of the application.
These examples illustrate that prolonged pendency is not exceptional and that, in some cases, the patent system itself consumes a substantial portion of the term it promises.
Effect of Delay on the Patent Term
Such delays significantly reduce the effective period of exclusivity available to patentees. Indian courts have been confronted with arguments that administrative delay diminishes the value of patent protection, particularly where the grant occurs several years after filing.
The consistent judicial position has been that Section 53 fixes the patent term rigidly and does not permit extension, even where delay is attributable to the patent office. Time lost during prosecution is therefore not accounted for under the current legal framework.
Commercial Constraints During Pendency
While the law does not prevent inventors from developing or working the invention during pendency, the absence of a granted patent creates practical limitations. Investors and licensees often require certainty of enforceable rights before committing capital or entering licensing arrangements.
The uncertainty is compounded by the possibility of refusal under Section 15, even after prolonged prosecution. The Glivec litigation serves as a reminder that years of engagement with the patent system may still culminate in rejection, leaving inventors without protection after substantial time and investment.
For technology-driven sectors with limited commercial windows, such uncertainty can be commercially debilitating.
Reasons for Delay in Patent Processing
Delays in patent grants arise from several factors, including increased filing volumes, procedural requirements for substantive examination, opposition mechanisms under Section 25, and administrative constraints within the patent office.
While each of these factors serves a legitimate purpose, their cumulative effect is to reduce the effective duration of patent protection.
Conclusion and Way Forward
The Indian patent system proceeds on the assumption that a twenty-year term from the date of filing is sufficient. In practice, prolonged prosecution often leaves inventors with a far shorter period of effective exclusivity, and in some cases, none at all.
While Indian law treats the twenty-year patent term as fixed, other jurisdictions have recognised that administrative delay can substantially erode the value of patent protection and have responded accordingly, without violating TRIPS. Why India remains resistant to such approaches, despite prolonged prosecution timelines, is explored next – click here.