A first look at Form 5 often happens when teams are finalising a complete specification and a familiar tension surfaces, who really counts as an inventor, can we add a lab manager to be safe, and if we miss someone can it be fixed later. This is where Form 5, the declaration as to inventorship, does important work. It records the true and first inventor or inventors for the application and anchors later steps such as requests to correct inventorship or to obtain a certificate of inventorship. Getting this form right on day one reduces downstream disputes and objections.
What is Form 5 and where does it sit in Indian law
Form 5 is the Declaration as to Inventorship, prescribed by the Patents Rules under Section 10(6) of the Patents Act. The statute requires that a declaration of inventorship be furnished in the prescribed form with the complete specification or within the prescribed period after filing it. Rule 13(6) is the operational hook for timing.
The official Form 5 template issued by the Indian Patent Office shows the structure, the declaration by the applicant naming the true and first inventor or inventors, a specific convention-country clause when relevant, and a signature block, including space for assent by any additional inventor not already named on the application form.
When must Form 5 be filed, and what changed on timelines
Under Rule 13(6), Form 5 must be filed with the complete specification, or the Controller may allow it within one month from the date of filing the complete specification. For PCT national phase entries, the one-month period is counted from the actual Indian filing date. Where extra time is needed, the Rule expressly permits an application in Form 4 to seek extension or condonation within the permitted window. The current consolidated Rules reflect this scheme.
Two practical takeaways on timing:
Not required at provisional stage. Form 5 is linked to the complete specification, whether filed directly or after a provisional.
Post-2024 breathing room for delays. After the 2024 amendments to Rule 138, Controllers may extend or condone certain Rule-based timelines through Form 4 up to an overall cap, so if Form 5 was missed at the complete stage, move quickly on Form 4 rather than waiting for an objection. Treat this as discretionary relief, not a right.
Who is an “inventor” for Form 5 purposes
Indian law focuses on true and first inventor, defined to exclude the first importer into India and a person to whom the invention is first communicated from outside India. Inventorship is tied to contribution to what is claimed. Mere supervision, funding, or execution without conceptual contribution to at least one claimed feature does not make a person an inventor. Indian practice guides emphasise this claims-based test.
A recurring confusion is between inventorship and ownership. Form 5 records inventors, it does not assign rights. Section 6 allows the assignee or legal representative to apply, but ownership entitlement must be proven separately, usually through proof of right under Rule 10. The IPO recognises PCT Rule 4.17 declarations in appropriate national phase cases, but proof of right can still be scrutinised.
Indian disputes have underlined the importance of disentangling inventorship from entitlement. In Darius Rutton Kavasmaneck v. Gharda Chemicals Ltd. (Bombay High Court, 2014–2015), questions arose around whether patents obtained by an individual should vest in the company. The court’s orders illustrate that employment status alone does not auto-transfer patent rights, which is why Form 5 should reflect actual inventors and entitlement must be supported independently.
How to complete Form 5 correctly
Use a short checklist while preparing the complete specification:
Name each inventor who contributed to the claimed subject matter. Record full name, nationality, and address. Cross-check against the draft claims to ensure each inventor has a defensible contribution.
Applicant’s declaration. The applicant signs declaring the true and first inventors. If a convention-country path is used, include the assignment declaration language mapped in the form.
Assent by additional inventor. If a person who was not already mentioned on the application form is to be included at the complete stage, use the assent block in Form 5. This is a practical way to achieve alignment when teams evolve between provisional and complete.
Keep proof of right ready if the applicant is not the inventor, especially in assignments that flow from employment or collaboration. File it with the application or within six months from the Indian filing date.
Fixing inventorship mistakes, and the Section 28 route
If someone has been left out or included wrongly, Indian law provides a structured correction pathway under Section 28 of the Act and Rules 66 to 70.
Addition or deletion before grant. A request or claim to mention a person as inventor must be made before grant. The prescribed vehicle is Form 8, with a supporting statement of circumstances. The Controller will notify relevant parties and may hold a hearing. Deletion is specifically addressed in Section 28(7) and the related rules.
How the record shows inventors. Mention of inventors under Section 28 is reflected in the complete specification and register in a specific statutory format.
After grant recognition. The 2024 amendments introduced Rule 70A and Form 8A, allowing an inventor to obtain a certificate of inventorship for a patent in force, useful because Indian patent certificates typically list applicants, not inventors.
Practical tip: once Form 5 is filed, treat later changes as exceptional and evidence-heavy. Prepare lab notebooks, emails, design documents, and claim-to-contribution maps before initiating a Section 28 request.
Frequent questions, answered in the flow
Is Form 5 needed for a provisional filing?
No. Form 5 is linked to the complete specification. File it with the complete or within one month from filing the complete, subject to any Controller-allowed extension via Form 4.Who must sign Form 5?
The applicant or authorised agent signs the declaration naming inventors, and the form includes an assent block for any additional inventor not earlier mentioned. Check the official template for the signature layout.We entered national phase. Does timing differ?
The one-month period still applies, but it is counted from the actual Indian national phase filing date.Can a missed Form 5 be regularised later?
Often yes, within the Controller’s discretion. Use Form 4 promptly to seek extension or condonation within the outer limits now available post-2024. Do not presume automatic relief, and file supporting reasons.How do we decide who is an inventor in a multi-disciplinary team?
Anchor inventorship to contribution to at least one claim. Administrative oversight, funding, and routine testing normally do not qualify. Map each claim to the individuals who conceived it.Common errors that trigger objections or disputes
Honorary inventors. Adding supervisors or managers with no claim-level contribution invites Section 28 challenges later and credibility issues at hearing. Ground your list in the claims.
Inventorship versus ownership mix-up. Form 5 is not an assignment. If the applicant differs from the inventors, file proof of right within the Rule 10 period and keep the chain clean, especially in PCT cases and collaborations.
Letting the one-month window lapse. Diary the deadline from the complete filing date. If slippage occurs, use Form 4 immediately.
Ignoring entitlement sensitivities. As illustrated by Gharda Chemicals litigation, entitlement can be fact-intensive. Keep employment or assignment records ready to match inventorship and applicant status.
A quick Form 5, do-it-right checklist
Before filing the complete specification
Freeze the claim set and map inventor contributions.
Prepare Form 5 with correct names, nationalities, and addresses.
Confirm applicant status and line up proof of right documents if applicant is an assignee or legal representative.
At filing of the complete
File Form 5 with the complete specification.
If any inventor is being added who was not on the initial application form, use the assent block on Form 5.
After filing
If an inventor was left out or wrongly included, evaluate Section 28 action and Form 8 before grant.
If the patent grants and you need inventor recognition, consider a certificate of inventorship via Form 8A under Rule 70A.
Final takeaways
Treat Form 5 as a precision instrument, not a formality. It records the true and first inventors and becomes the foundation for any later inventorship action. File it with the complete specification, keep claim-to-contribution evidence ready, separate inventorship from ownership by ensuring proof of right is on file when needed, and use the Section 28 pathway carefully if corrections are unavoidable. Applicants who approach Form 5 with this discipline rarely see inventorship objections, and they carry stronger credibility if a dispute ever arises.
