It is not unusual for annuity calendars to slip, particularly when portfolios transition between internal teams or agents. The moment a missed renewal is discovered, the same anxious question is asked, has the patent been lost, and if so, can it be brought back. Under Indian law, the answer is structured. A patent can cease for non-payment, a short grace window exists, and a longer restoration route is available, each with clear statutory tests and consequences.
What “lapse” means the moment a renewal is missed
A patent “ceases to have effect” if the renewal fee is not paid within the prescribed period, or within the permitted extension. This cessation flows from Section 53(2) of the Patents Act, which treats non-payment at the due time as a trigger for loss of rights. In simple terms, the monopoly is switched off until lawfully revived.
Is there any grace period after the due date
Yes. Rule 80 of the Patents Rules allows an extension of up to six months, requested on Form 4 with the prescribed fee. If the annuity is paid within this extended window, the patent continues without a break. The extension is discretionary in the sense that it must be positively sought, so act quickly and file Form 4 alongside the renewal.
The “late grant” situation, when are the first renewals due
Where grant occurs more than two years after filing, Section 142(4) gives three months from the date the grant is recorded in the Register to clear all accrued renewals, extendable up to nine months from recording, typically by using Form 4. Many lapses occur because this post-grant window is mis-diarised, so verify the recording date on the grant letter.
If the grace period is gone, how restoration works
If the patent has already ceased, Section 60 opens a restoration route. The patentee or legal representative can apply within eighteen months from the date of cessation, using Form 15. The application must fully set out why the fee was missed.
The Controller then applies Section 61. Two statutory tests govern restoration, first, the failure to pay must have been unintentional, and second, there must be no undue delay in filing the restoration application. If the Controller is prima facie satisfied on these points, the application is published and any person interested may oppose on either ground. Upon success, unpaid renewal and additional fees are taken, and the patent stands restored.
What rights do you have during the lapse and after restoration
Section 62 imposes important limits. No suit or proceeding can be filed or continued for infringement committed between the date of cessation and the date of publication of the restoration application. Also, the Controller may impose conditions to protect or compensate persons who started using the invention, or took definite steps to do so, in that interval. In practice, this means damages for past acts in the “dark period” are unavailable, and even after restoration, third-party equities may be recognised.
Quick map of deadlines, forms and outcomes
Situation | Time limit | What to file | Core test | Result |
Missed renewal, still within grace | Up to 6 months from due date | Form 4 + renewal fee | None, administrative | Patent remains in force without break. |
Lapse discovered after grace | Within 18 months from cessation | Form 15 + statement of reasons | Unintentional failure, no undue delay | Publication, possible opposition, restoration if allowed; fees payable. |
First renewals after late grant | 3 months from recording of grant, extendable up to 9 months | Form 4 + accrued renewals | Extension requested in time | Avoids lapse for post-grant accruals. |
Enforcing rights for acts during lapse | N.A. | N.A. | Statutory bar | No suit for acts between cessation and publication of restoration application. |
What evidence helps to prove “unintentional” and “no undue delay”
The statement of circumstances should be factual and contemporaneously supported. In practice, the following documents help, especially if opposition is expected:
Docketing records showing the annuity schedule and reminder trails.
Email correspondence with the agent or internal team indicating steps taken and the specific error.
Payment proofs for adjacent years suggesting consistent intent to maintain.
Organisational records explaining genuinely disruptive events, coupled with prompt action after discovery.
These go to the heart of Section 61’s twin tests and often decide the outcome.
Jurisprudence applicants should know
Thijs, Roeland Michel Mathieu v. Assistant Controller of Patents and Designs, Delhi High Court, 2024. The Court set aside refusal of restoration where a grant communication had been misrouted to an incorrect email address. Restoration was directed upon payment, underscoring that an applicant should not be penalised for official communication errors when the statutory tests are met. Ratio, restoration is appropriate where failure was unintentional and administrative error contributed.
Mannesmann AG v. Controller of Patents, IPAB. The Appellate Board reiterated that restoration hinges on two statutory pillars, unintentional failure and absence of undue delay, and examined the record accordingly. Ratio, mere assertions are insufficient, the circumstances must satisfy Section 61 on evidence.
Sanat Products v. Union of India, Delhi High Court. The Court scrutinised restoration orders closely, emphasising that reasons addressing Section 61’s tests must be recorded. Orders that do not discuss these conditions will not stand and may be remanded. Ratio, restoration is not automatic, it must transparently satisfy the statute.
These decisions, read with Sections 60 to 62, show a consistent approach, the law is accommodating when the omission was genuinely inadvertent and promptly corrected, yet it safeguards third parties and insists on reasoned orders.
Frequently asked questions, answered in context
Does the 18-month restoration clock run from the original due date or from the end of the six-month grace period?
From the date on which the patent “ceased to have effect”, that is, when the prescribed or extended period expired without payment. Compute the 18 months from that cessation date, then file Form 15 within that window.Can restoration succeed if the business had deliberately stopped paying to save cost?
Restoration demands that failure was unintentional. A conscious decision not to pay typically defeats this test. Evidence of continuing intention to maintain the patent, and prompt action once the miss was discovered, materially improves prospects.Can infringement committed during the lapse be sued after restoration?
No, Section 62(2) bars suits for acts committed between cessation and publication of the restoration application. The Controller may also impose conditions to protect users who started or prepared to use the invention in that interval.Is an opposition possible against my restoration application
Yes. After the Controller’s prima facie satisfaction, the application is published, and any person interested may oppose on grounds that the failure was not unintentional or that there was undue delay. Be ready with documentary proof for both tests.Practical playbook to minimise risk
Act the day you spot a miss. If you are still within six months of the due date, file Form 4 and pay the annuity with the extension fee immediately. Do not wait to collate perfect paperwork.
If already lapsed, file Form 15 early. A well-supported restoration application carries greater credibility, especially if opposition is filed. Avoid cutting it close to the 18-month limit.
Audit the grant recording date. Where grant arrived late, calendar the Section 142(4) window and clear all accrued renewals within three months, or extend in time under Form 4.
Prepare for third-party equities. Even after restoration, the statute protects users in the lapse period and restricts past enforcement. Align licensing and litigation expectations accordingly.
Tighten your annuity governance. Maintain redundant reminders, agent SLAs on renewals, and portfolio-wide dashboards, because restoration is available but not guaranteed.
The bottom line
A missed renewal does not necessarily spell the end. Indian law provides a short grace period via Form 4 and a longer, evidence-driven restoration route via Form 15 within eighteen months, both operating within a framework that also protects public users and demands reasoned decisions. Move fast, document why the miss was unintentional, and expect closer scrutiny where the delay is prolonged. If the statutory steps are followed and the facts support “unintentional” and “no undue delay”, restoration is achievable.
