Restoration of Patent – How to Guide
Restoration of Patent – How to Guide
A patent is granted for term period of twenty years considered from the date of filing of the patent. According to section 53, Indian Patent Act, the patentee has to pay renewal fee up till the date of possession mentioned by the patent office. In the event of renewal/maintenance fees not paid by the patent holder within the prescribed time period of the Patent and Trademark Office, the patent will be lapsed.
Renewal fee as specified in the first schedule is payable before the expiration date of the second year from the patent date in respect of the third year. Thereafter the renewal fee should be paid before the start of every succeeding year. However, this period can be made extendable by six months by requesting extension of time. During the pendency of the application of patent or if the patent has been granted after the expiry period of two years from the date of filling, the renewal fee has to be paid within a period of three months of the date of recording in patents registration or within the extended period but not later than a period of nine months from the recording date.
Restoration of Lapsed Patents
The Patents Act provides definite safeguards for restoring a lapsed patent. Consequently a patent that has ceased to have effect because of payment failure the agreed fees within the approved period under Section 53 of the Act or within such a period, permitted under the Section 142 of the Act.
The patentee of his legal representative, may, produce an application in the prescribed manner for the lapsed patent’s restoration. In the case where the patent was being held by two or more persons jointly then with the Controller’s leave one or more of them without the joining by others may submit the application for restoration within a period of eighteen months from the date the patent has ceased to be effective. Although the renewal fees can be paid by any person, the application for the restoration of the lapsed patent, the application has to be made compulsorily by the patentee or his appointed legal representative.
You can use an application in Form 15 under Section 60 for the restoration of patents.
The necessary conditions are:
- In the event the request from the applicant for hearing within the permitted time is approved and the Controller after allotting the applicant’s hearing is satisfied on a prima facie basis that the applicant’s failure to pay fees for renewal is unintentional, he shall therefore publish the application.
Opposition in Restoration under Section 61
- It is observed that at any time within the period of two months from the publication date of the applicant under the terms of rule (3) of Rule 84, any interested person can give notice of opposition in Form 14.
- A notice copy related to the opposition shall be delivered to the applicant by the controller.
- The specified procedure related to Rules 57-63 pertaining to written statement filing, reply statement filing, leaving evidence, hearing and costs shall to the required extent apply to the opposition’s hearing under the terms of Section 60 as applicable to the opposition proceeding’s hearing.
Payment of Unpaid Renewal Fees
- When a decision in favour of the applicant has been made by the controller, the applicant can proceed to pay the unpaid renewal and additional fees according to the specifications of the First Schedule, within a month’s time from the date of the Controller’s Order permitting the application for restoration.
