A familiar panic sets in when “Patent ceased to have effect” appears on the Indian Patent Office register after a missed annuity. It has happened even where the lapse flowed from a system or communication error, as the Delhi High Court recently saw in Thijs, Roeland Michel Mathieu v. Assistant Controller of Patents and Designs where a grant email went to the wrong address and the Court ordered restoration on payment of dues. The message was simple, applicants should not be penalised for official miscommunication.
What is a "lapsed" patent is India?
A granted patent lapses if the renewal fee for a given year is not paid within time, including the extendable six-month window available on Form 4. Rule 80 of the Patents Rules makes renewal due annually from the end of the second year from the date of patent, allows a six-month extension on request, and even offers a ten per cent reduction when at least four years are paid in advance electronically.
If renewal is still not paid by the end of the allowed period, the patent “ceases to have effect” from the due date. That is what the law and the register call a lapse.
Can a lapsed patent be restored?
Yes, but subject to a tight statutory test. Chapter XI of the Patents Act sets out three essentials:
18-month outer limit. An application must be filed within eighteen months from the date the patent ceased.
Unintentional lapse. The Controller must be satisfied that failure to pay was unintentional.
No undue delay. There must be no undue delay in making the restoration application.
These come directly from Sections 60 and 61, which also require a verified statement explaining the circumstances and permit the Controller to seek further evidence.
Who may apply, and how many co-owners must sign it? Section 60 allows the patentee or legal representative to apply. If the patent is jointly held, one or more joint owners may apply with the Controller’s leave without joining the others.
Restoration, step-by-step
Step 1, check the clock. Confirm that you are still within 18 months of the date of cessation. If you are outside this window, Section 60 is strict. Courts have occasionally stepped in on exceptional facts, but do not plan your strategy around extraordinary relief. See Rubicon Research Pty Ltd v. Controller General of Patents (IPAB, 2020), where restoration was allowed in a case featuring agent negligence and procedural irregularity, a liberal approach later noticed by the Delhi High Court.
Step 2, file Form 15 with evidence. Use Form 15 with the prescribed fee and a verified statement fully setting out why the fee was not paid. Attach contemporaneous documents, internal emails or docketing logs, proof of payments attempted, and any supporting correspondence with your agent or the Patent Office. Form 15 is the statutory vehicle under Section 60 read with Rule 84.
Step 3, publication and potential opposition. If the Controller sees a prima facie case, the application is published, after which any person interested can oppose within two months on either or both grounds that the failure was not unintentional or that there was undue delay. Opposition is via Form 14, and the procedure broadly tracks post-grant opposition rules.
Step 4, hearing and order. If there is no opposition, or you succeed after hearing, the Controller allows restoration subject to payment of all unpaid renewal fees and an additional restoration fee within one month from the order. The decision is then published.
What happens during lapse: Intervening Rights
Restoration is not a time machine. Section 62 protects third parties who, in the gap between lapse and publication of the restoration application, began to use the invention or took definite steps to do so. The Controller may impose protective or compensatory conditions, and there can be no infringement suits for acts committed in that gap. Plan commercial enforcement accordingly.
What evidence persuade the controller and the court
Indian decisions highlight two themes:
No intent to abandon, credible explanation. In Bry-Air Prokon Sagl & Ors v. Union of India (Delhi High Court, 2022), the Court restored both a lapsed patent and an application status where the lapse flowed from patent agent negligence, emphasising that applicants should not suffer for an agent’s fault when there is no indication of abandonment. Ratio, a bona fide applicant with clear evidence of diligence and agent error deserves relief.
Official or communication errors. In Thijs, Roeland Michel Mathieu (Delhi High Court, 2024), restoration followed because IPO sent the grant communication to the wrong email. The Court directed restoration upon payment, underscoring fairness when the lapse traces to official error.
Agent negligence and liberal approach in exceptional cases. Rubicon Research (IPAB, 2020) took a flexible view where long association with an agent and documented lapses by the agent explained the default, signalling that Rule 137-style residuary powers or writ jurisdiction may help in rare, compelling fact patterns. Treat this as a safety valve, not a strategy.
Deadline, forms and fees at glance
Practical FAQ's
Is “cash flow trouble” enough to prove the lapse was unintentional?
Not by itself. The Controller looks for a fact-rich, credible explanation and contemporaneous material that shows diligence and lack of intent to abandon. Thin or generic assertions usually fail the “unintentional” test under Section 61.
Can a licensee or unrecorded assignee file Form 15?
The statute says the patentee or legal representative. If title has changed, record it under Sections 68 and 69 first, then file, or seek appropriate leave where the patent is jointly held.
What if I have crossed 18 months?
Section 60 is rigid about the timeline. Some relief has been granted in extraordinary cases, for instance Rubicon Research where strong facts around agent negligence existed, but these are exceptions. Treat 18 months as a hard stop.
Will restoration wipe out infringement that happened during the lapse?
No. Section 62 bars suits for acts committed in the gap and allows protection for intervening users. Your rights resume prospectively, subject to any conditions the Controller imposes.
Takeaways and common pitfalls
Document everything. Docketing logs, payment authorisations, and agent correspondence often decide “unintentional” versus “neglect”.
Align your service email. Ensure the IPO’s email for service matches what is on record. The Thijs case turned on a wrong address.
Use extensions before lapse. If you are late, use the six-month Rule 80(1A) extension on Form 4. It is far easier than running a restoration case.
Pay in advance when possible. Consider paying four years electronically to reduce risk and benefit from the ten per cent reduction in Rule 80(2).
Expect scrutiny if the delay is long. The longer you wait within the 18 months, the more detailed your explanation should be.
Budget for fees. Restoration attracts both the unpaid annuities and an additional restoration fee, due within one month from the order. Missing that window can undo the win.
Closing thoughts
Restoration is designed for genuine lapses, not strategic non-payment. If you act within eighteen months, file a well-supported Form 15, and show that the default was truly unintentional with no undue delay, the law and recent jurisprudence are on your side. For many applicants, a short, structured effort now saves years of exclusivity later.
