A frequent post-grant query to Indian patent practitioners arises when a patent gets granted in the name of an applicant who has died before grant, or in the name of a company that has since ceased to exist. The Gazette shows the grant, yet the true successor cannot transact, license, or enforce because the patentee of record is wrong. Indian law anticipates this edge case. The Patents Act, 1970 provides a narrow, administrative route to fix the patentee’s name on the granted patent, and the Patents Rules, 2003 prescribe Form 10, Application for Amendment of Patent, for exactly this situation.
The statutory hook: Section 44 and Rule 75
Section 44 of the Patents Act empowers the Controller to amend the patent by substituting the correct person’s name where the patent was granted to someone who had already died, or where a body corporate had ceased to exist, before grant. The section also states that the patent “shall have effect, and shall be deemed always to have had effect” accordingly. Rule 75 operationalises this by requiring an application in Form 10, to be filed with substantiating evidence and accompanied by the patent.
What Form 10 is, and what it is not
Form 10, titled “Application for Amendment of Patent,” is strictly tied to Section 44 scenarios, that is, amendment of the name of the patentee of record. It is not a general vehicle to tweak claims or the specification.
The form text itself mirrors the relief sought, requesting substitution of “my/our name for the name of the grantee.”
When should Form 10 be used?
Use Form 10 when the patent has been granted, but the patentee recorded on the register is legally the wrong person because:
the original applicant died before grant, or
the original body corporate ceased to exist before grant.
Where there is a merger, demerger, assignment, or name change that occurred after grant, other post-grant register mechanisms apply. Similarly, if you wish to amend claims or the specification, the correct route is Section 57 read with Section 59 and Form 13, not Form 10.
Filing mechanics: a practical checklist
1) Prepare evidence
Bring clear documents to prove entitlement, for example:Death certificate of the applicant and proof that the applicant died before the date of grant, plus succession documents showing who “ought to have been granted” the patent; or
Evidence that a company ceased to exist before grant, together with documents proving who the correct successor in interest is.
Rule 75 expressly requires substantiating evidence to accompany Form 10.
2) Fill Form 10 carefully
Form 10 asks for: the applicant’s particulars, the patent number, the grant date, the name of the original grantee as printed, and a request to substitute the correct name, together with a list of supporting documents. The form is addressed to the Controller of Patents at the appropriate Patent Office.3) Attach the patent and pay the fee
Rule 75 requires the application to be accompanied by the patent and the prescribed fee under the First Schedule. Always check the current fee line item for “Application under Section 44 for amendment of patent, Form 10.”4) Follow up for an administrative order
On being satisfied about the evidence and entitlement, the Controller issues an order substituting the correct patentee’s name. Section 44 deems the patent always to have had effect in that substituted name, aligning record and reality.How Form 10 differs from “amending a patent” under Sections 57–59
The word “amendment” is used in two very different senses in Indian patent practice. Applicants often conflate them, so it helps to keep a crisp contrast handy:
Form 10, Section 44
Narrow purpose: correct the patentee’s name when the listed grantee died before grant or a body corporate ceased to exist.
No change to claims or specification.
Evidence-driven substitution of name only.
Form 13, Sections 57 and 59
Substantive amendments to an application/specification before or after grant, allowed only by disclaimer, correction, or explanation, and only if the amendment does not add matter or broaden scope beyond what was originally disclosed. Indian courts have repeatedly underlined these limits.
Why this distinction matters, with jurisprudence
Indian courts have developed a careful body of law on claim/specification amendments, which, though not directly about Form 10, is crucial to avoid using the wrong mechanism:
AGC Flat Glass Europe SA v. Anand Mahajan (Delhi HC, 2009), a leading decision on post-grant amendments, allowed clarificatory amendments that did not enlarge claim scope, reaffirming that Section 59 bars broadening or adding new matter.
Later Delhi High Court rulings have continued to read Section 59 strictly, noting that permissible amendments must be by way of disclaimer, correction, or explanation, and must stay within the disclosure of the filed specification. These principles have been emphasised in recent commentary and case notes.
The takeaway is simple: use Form 10 only for the Section 44 name-substitution scenario. For anything touching claims or the body of the specification, reach for Form 13 and be prepared to meet the Section 59 tests.
Frequently asked questions woven into practice
Is Form 10 available if the applicant died after grant, not before?
Section 44 specifically addresses cases where the grantee had already died before grant. If the death is post-grant, the better route is to use post-grant register procedures for transmission, assignment, or name change, rather than Section 44.How quickly will the Patent Office act on a Form 10?
No fixed timeline is prescribed in Rule 75. Processing time depends on the completeness of evidence and office workload. Submitting a clean, well-indexed evidence set generally helps.Can Form 10 be used to change the patentee from A to B after a merger that completed before grant?
If the original corporate applicant ceased to exist before grant, and B is the universal successor, Section 44 with Form 10 fits. Evidence showing legal succession and cessation before grant is critical. If the change occurred after grant, use the register update mechanisms, not Section 44.Does the Section 44 amendment cure all acts already taken in the wrong name?
Section 44 states the patent shall be deemed always to have had effect in the substituted name, which aligns the register retrospectively. However, for transactional or enforcement steps already taken, consider re-executing or ratifying documents to avoid counter-arguments.Evidence strategy: what persuades the Controller
From practice, the Controller typically looks for a tight chain of entitlement. Consider this evidence structure:
Event proof: death certificate with date, or official proof that a company ceased to exist before the grant date.
Successor proof: probate, succession certificate, court order, or statutory merger documents identifying the person or entity who “ought to have been granted” the patent.
Continuity proof: where relevant, board resolutions, merger schemes, or certified copies from the registrar of companies.
Patent particulars: the patent as granted, with bibliographic sheet and the Gazette extract if available.
Rule 75 expects “substantiating evidence” with the application, so aim to file a complete packet rather than piecemeal submissions.
Step-by-step filing flow for Form 10
Collate evidence and prepare a concise note mapping Section 44 prerequisites to each document.
Fill Form 10 with the granted patent number and date, the name of the grantee as printed, and the proposed substituted name.
Attach the patent, the evidence bundle, and the prescribed fee as per the First Schedule.
File with the appropriate Patent Office and track the application.
Respond promptly to any Controller communications seeking clarifications.
Obtain the amendment order and ensure the Register of Patents reflects the substituted name.
Common pitfalls and how to avoid them
Using the wrong form: attempting to repair claim language via Form 10 will fail. Use Form 13 for Sections 57/59 amendments to the application/specification.
Weak succession proof: if there is any ambiguity in who the rightful successor is, consider obtaining a court order first.
Overlooking timing: Section 44 speaks to death or cessation before grant. If that condition is not met, do not rely on Form 10.
Fee line items: fee schedules change. Verify the current First Schedule entry for Form 10 before filing.
How this fits into broader enforcement and transactions
Once the Controller substitutes the patentee’s name, title clarity improves instantly. This aids:
Licensing and revenue deals, since counterparties require a clean chain of title.
Enforcement, because standing to sue for infringement depends on being the patentee or person claiming under the patentee.
Recordal hygiene, reducing future due-diligence queries in financings or exits.
A quick side-by-side, for your files
Use Form 10 when the patent was granted to the wrong name due to death or corporate cessation before grant. Relief is name substitution only.
Use Form 13 for amendments to claims/specification under Sections 57 and 59, carefully staying within disclosure and without broadening scope, as reinforced by Delhi High Court decisions such as AGC Flat Glass
