Near filing time, teams often discover that a funding partner, fabricator, or demo collaborator is keen to “secure the patent” themselves. Anxiety is natural because applications move fast once drafted, and paperwork about ownership or consent is sometimes unfinished. Indian law takes a clear view on who may apply, what “wrongful obtaining” means, and how to correct the record if someone jumps the gun.
Who may apply for a patent, and what must an assignee show?
Under Section 6, an application may be made by the true and first inventor, by the assignee of such inventor, or by the legal representative of a person so entitled, alone or jointly. If an assignee files, Section 7(2) and Rule 10 require proof of right to be furnished with the application or within six months of filing. In practice, this is the inventor-signed Form 1 or an assignment that transfers the right to apply. Without proof of right, an assignee’s filing is not compliant.
If someone files naming themselves as applicant without your assignment, the deficiency can be raised before the Patent Office. Controllers routinely insist that assignees file proof of right within the Rule 10 timeline, and appellate decisions have reinforced that this requirement is mandatory.
Funding, fabrication, and demos do not make one an inventor
Inventorship is about intellectual contribution to the conception of the claimed invention, not managerial oversight, finance, or routine execution. In V.B. Mohammed Ibrahim v. Alfred Schafranek (Mysore HC, 1960), the Court held that a financing partner could not be treated as an inventor, and inventorship lies with natural persons who actually contributed technically.
A firm can own a patent through assignment from the human inventor, but inventorship remains with individuals. Shining Industries v. Shri Krishna Industries (Allahabad HC, 1975) recognised assignment to a partnership while treating inventors as the source of title.
Practical reading: a funder, contract manufacturer, or demo partner is not an inventor merely because they paid, built, tested, or showcased. If they did contribute technically to a claimed feature, they should be named as co-inventor; otherwise, title flows from the true inventors to the applicant through assignment.
If someone files without your consent, what are your routes?
Before grant
Flag the entitlement defect: if an assignee has filed without an assignment, point out the Rule 10 / Section 7(2) gap and demand proof of right. If it is not cured in time, the application is vulnerable.
Pre-grant opposition on wrongful obtaining: once the application is published, any person may oppose under Section 25(1), including on the ground that the invention or any part was wrongfully obtained from the opponent.
“Obtaining” decisions under Section 26: in opposition, if the Controller finds the invention was obtained from the opponent, the Controller may direct that the patent proceed in the opponent’s name, or that the impugned specification be amended to exclude the obtained part, with priority for the opponent on that excluded part.
Substitution of applicant under Section 20: where entitlement is shown by assignment or court order, the Controller may direct that the application proceed in the name of the claimant, wholly or jointly. This tool is useful when the paperwork exists but the wrong entity filed.
After grant
If the patent has already been granted to the wrong person, two strong routes exist:
Revocation: Section 64(b) permits revocation where the patent was granted on the application of a person not entitled to apply, and Section 64(c) permits revocation where it was obtained wrongfully in contravention of the rights of the petitioner. Revocation may be sought by “any person interested” before the High Court, or by counter-claim in an infringement suit.
Grant to the true inventor after revocation: Section 52 empowers the court, upon revoking for wrongful obtaining, to direct grant of the patent to the true and first inventor for the whole or part of the invention, retaining original dates.
What if the other side publicly demonstrates or publishes your invention?
Unauthorised disclosure by a collaborator can be devastating, but the Act provides tailored non-prejudicial disclosure protections:
Section 29(2)–(3): if the publication was obtained from you without consent, and you file as soon as reasonably practicable after learning of it, prior publication is not treated as anticipation, provided there has been no commercial working beyond reasonable trial. Protection also covers filings made by others in contravention of your rights followed by their publication or use.
Section 31: display at notified exhibitions, use during the exhibition period, and papers read by the true and first inventor before a learned society, carry a twelve-month grace if you file within that period.
Action point: document the unauthorised disclosure, file promptly, and rely on Section 29 or 31, as applicable, while also pursuing the entitlement and “obtaining” routes described above.
FAQs woven into practice
Does involvement in testing or coding make my contractor a co-inventor by default?
No. Inventorship tracks contribution to conception of the claimed features. Routine execution without shaping what is claimed does not qualify, a principle reflected in case law and Patent Office practice.Can a company or lab file as applicant without naming the human inventors?
An applicant can be a company as assignee, but inventors must be identified and the assignee must file proof of right within the Rule 10 window. Controllers may object, and failure can be fatal.If a partner files first, will I lose my rights forever?
Not necessarily. Use pre-grant opposition for wrongful obtaining, seek substitution under Section 20 before grant, or pursue revocation under Section 64 and request grant to the true inventor under Section 52 post-revocation. Timely evidence of your conception and assignments will be decisive.Should I also consider confidentiality remedies?
Yes. Courts protect confidential information and know-how through breach-of-confidence principles. John Richard Brady v. Chemical Process Equipments (Delhi HC, 1987) is frequently cited for equitable protection of technical drawings and know-how shared in confidence. Use NDAs, mark confidential documents, and preserve paper trails.A simple decision path for teams
Map contribution to claims. List who conceived which claim elements. Name only those as inventors.
Close assignments early. Execute assignment or inventor-signed Form 1 so the intended applicant has proof of right. Track the six-month Rule 10 deadline.
If a third party files. Immediately notify the Controller about entitlement issues, prepare for pre-grant opposition on wrongful obtaining after publication, and consider Section 20 substitution.
If disclosure happens. File promptly and evaluate Section 29 and Section 31 routes to neutralise the disclosure, while pressing entitlement claims.
After grant to the wrong party. Assess Section 64 revocation, and seek transfer of grant under Section 52.
In simple terms...
A funder, fabricator, or demo partner cannot validly file as applicant in India unless they are the true and first inventor, or your assignee with proof of right. Financing, building, or showcasing does not create inventorship by itself. If someone rushes to file without consent, Indian law gives you practical tools, before and after grant, to put the patent in the right hands and to neutralise premature disclosures. Align paperwork early, keep clean evidence of conception, and act quickly if an unauthorised filing surfaces.
