Form 17: Application for compulsory licence

An inventor or patent‐holder may view exclusivity as sacred, but in India that exclusivity can be curtailed in the public interest through a compulsory licence. The tool enabling that curtailment is Form 17, the prescribed format under the Patents Rules to apply to the Controller for such a licence under Sections 84, 91, 92 or 92A. Understanding how to draft and advance a Form 17 is crucial for any applicant, whether a generic manufacturer, NGO, or public interest actor, seeking to override a patent when access, affordability or public need demands it.

In this blog you will find:

• The legal basis and timing for filing in Form 17
  

• What must go into the application (key contents)
  

• The procedural steps after filing
  

• Important jurisprudential touchpoints
  

• Practical tips, sample structure and pitfalls to avoid
  

Legal Bases & Timing: When and under what statutes?

Statutory Grounds under the Patents Act

Form 17 is used under the following provisions:

• Section 84(1): Any person interested may apply for a compulsory licence after three years from the date of grant of the patent, on grounds that:
  

1. the reasonable requirements of the public with respect to the patent invention have not been satisfied, or
   

2. that the invention is not available to the public at a reasonably affordable price, or
   

3. that the patented invention is not worked in India.
   

• Section 91 / Section 92(1): In cases of national emergency, extreme urgency or public non-commercial use, the Central Government may notify the need for compulsory licensing and applications may be made under Section 92.
  

• Section 92A: This allows special compulsory licences for export of patented pharmaceutical products to countries with insufficient manufacturing capacity.
  

Under Rule 96 of the Patents Rules (as updated), an application for compulsory licence must be made in Form 17.

Key timing constraint: For Section 84, the patent must have been in force for at least 3 years before an application under Form 17 is allowed. 

Key Contents: What must Form 17 contain?

Form 17 is not a mere formality; it must build a prima facie case before the Controller that the statutory grounds are met. The following are essential components:

1. Nature of applicant’s interest

• Whether the applicant is a manufacturer, importer, NGO, licensee, or other “person interested.”
  

• If the applicant already holds a licence under the same patent, that must be disclosed.
  

2. Patent particulars

• Patent number, title, date of sealing/grant, inventor/assignee details
  

• Geographical and technical scope
  

3. Grounds and facts in support

• Detailed factual statement showing that one or more of the Section 84 grounds are met.
  

• For example: empirical data on demand vs supply, price comparisons, reports of non-availability, geographic coverage, inability to license, etc.
  

4. Attempts for voluntary licensing

• Evidence that the applicant made efforts to obtain licence from the patentee on reasonable terms, and that such efforts failed within a “reasonable time” (normally up to six months), except in emergency cases.
  

5. Applicant’s ability & plan to work the invention

• The technical and financial capability of the applicant to manufacture, distribute and commercialise the invention to meet the public interest.
  

6. Proposed terms & conditions

• The licence terms the applicant is willing to accept (royalty, exclusivity, duration, territory).
  

• This helps the Controller assess reasonableness.
  

7. Relief sought

• Whether full or partial licence
  

• Whether export rights (if Section 92A invoked)
  

• Any additional relief such as direction to patentee or variation of existing licences
  

8. Verification and signatures

• Declaration under oath that the facts are true to the best of applicant’s knowledge.
  

The official Form 17 pdf from the IP Office (India) is publicly available.

Procedure after filing Form 17

Once the applicant files Form 17 (online or on paper) along with the prescribed fee, the following sequence unfolds:

1. Prima facie review by Controller
   Under Section 87, the Controller examines whether the application makes out a prima facie case against the patentee.
   In doing so, the Controller considers:
   

• Nature of invention, elapsed time since grant, measures taken by patentee
  

• Applicant’s capacity, risk, and public advantage
  

• Whether efforts to secure voluntary licence failed (unless exemption applies)
  

• Other relevant facts already in the application record
  – In non-emergency cases, the “reasonable period” is ordinarily not more than six months.
  

2. If the Controller is not satisfied, he will issue a notice of rejection (“not satisfied” notice). The applicant has one month from the date of notice to request a hearing. If no hearing is sought, the application is refused.
   

3. Serving notice and publication
   If a prima facie case is made, the Controller serves notice on the patentee and any other interested party, and publishes a notice in the Official Journal.
   

4. Opposition by patentee / interested party
   Within a prescribed time (typically two months from publication), the patentee or other interested party may file a notice of opposition (often via Form 14) with supporting grounds and evidence.
   

5. Hearing and evidence
   Both applicant and opponent are given opportunity to be heard, file evidence, and make submissions. The Controller adjudicates after the hearing.
   

6. Decision and terms
   If the Controller allows the application, he will grant the licence on such terms as he deems fit. In determining terms, Section 90 requires securing:
   

• Reasonable royalty / remuneration to patentee, considering investment, nature of invention, working capacity, etc.
  

• Non-exclusive, non-assignable licence
  

• Licence period (balance term or shorter)
  

• Obligation to supply in domestic market
  

• Possible export rights (in case of Section 92A)
  

• Ensuring public access at affordable price
  

7. Termination / revocation
   

• Termination: The patentee or interested party may file an application in Form 21 to terminate the compulsory licence if the circumstances that necessitated it no longer exist. The licence holder gets opportunity to object.
  

• Revocation: Under Section 85, any person or the Central Government may seek revocation of a patent (on non-working grounds) after two years from grant of a compulsory licence.
  

Judicial & Practical Highlights

• The Natco v. Bayer / Nexavar case (2012) remains the watershed instance: India’s first compulsory licence was granted under Section 84 after a methodical evaluation of affordability, unmet public need, and applicant capacity.
  

• Courts emphasize that grant of compulsory licence is extraordinary and must balance patentee’s rights and public interest.
  

• The applicant’s burden is high: mere allegation is insufficient; credible data and technical plan must support.
  

• The Controller may adjourn a hearing up to 12 months in some justified cases under Section 86.
  

• In certain emergency or government use situations, the prior negotiation requirement is waived.
  

Sample Structure & Drafting Tips

Below is a skeleton of how you may structure your Form 17 application narrative:

1. Cover & particulars
   

• Title: “Application under Section 84 (or 92 / 92A) via Form 17”
  

• Patent number, title, date of grant
  

• Applicant’s identity, nature of interest
  

2. Introduction & purpose
   

• Brief of invention, public health / commercial context
  

• Summary of grounds
  

3. Detailed factual basis
   

• Demand & supply gap
  

• Price levels, affordability studies
  

• Distribution/unserved areas
  

• Experience in other jurisdictions (if relevant)
  

4. Efforts to license voluntarily
   

• Correspondence, offers, counter offers
  

• Reasons for refusal or delay
  

5. Capability & plan to work invention
   

• Manufacturing facilities, quality control, logistical plan, capital, timelines
  

6. Proposal for licence terms
   

• Royalty rate, tenure, exclusivity, territory, sales commitments
  

7. Relief sought & export clause (if relevant)
   

8. Verification, signature and annexures
   

• Attach supporting documents, correspondence, technical data, market research
  

Drafting Tips / Pitfalls to avoid:

• Avoid vague or unsupported assertions (“will ensure supply” without data).
  

• Use empirical data (market surveys, government/NGO reports) to support claims.
  

• Don’t omit evidence of failed licence negotiation, Controller may reject otherwise.
  

• Justify royalty demands reasonably; overreaching demands may stall approval.
  

• Ensure clarity on whether export under Section 92A is sought; separate arguments if so.
  

• Keep the narrative logically flowing: each fact should build toward meeting a ground.
  

FAQs (embedded within the flow)

Can the applicant already be a licensee?

Is prior negotiation always required?

What is the timeline for Controller’s decision?

Can the licence be assigned or sublicensed?

Conclusion

Form 17 is far more than a bureaucratic form - it is the gateway to invoking statutory override of patent rights to serve public interest. A potent tool when used persuasively, but demanding in its requirements. A successful Form 17 application must weave legal scaffolding (Section 84, 92, 92A, 87, 90) with precise factual, technical and commercial evidence.