Patent Term Adjustment in India and Section 53

Published 1 October 20267 minute read

Can a patentee lose years of exclusivity because the Patent Office took years to grant the patent? The Supreme Court of India has agreed to examine that question. It has not answered it yet.

On 29 September 2026 a Bench of Justice P.S. Narasimha and Justice Alok Aradhe issued notice in Gunjan Sinha @ Kanishk Sinha & Anr v Union of India & Anr. The petitioners challenge a Calcutta High Court ruling that upheld section 53 of the Patents Act, 1970. Section 53 fixes the term of a patent at twenty years from the date of filing. The matter is reported to be listed next on 26 October 2026, with Advocate Kruttika Vijay assisting the Court as amicus curiae. For anyone asking about patent term adjustment in India, this is now the case to watch.

Key points

The Supreme Court has only issued notice. Section 53 remains in force and no patent term has changed.
The Calcutta High Court twice held section 53 valid. The Division Bench left any compensation for delay to Parliament.
The US and, more recently, China and Japan restore term lost to examination delay. India and the EPO do not.
Applicants can reduce the risk today through early examination requests, expedited examination and prompt replies.

The facts and the patent

The petitioners hold Indian Patent No. 254875 for a fuel cell system and a vehicle fitted with it. The application was filed on 2 May 2005. The patent was granted on 28 December 2012, more than seven years later. Because the term runs from filing, the twenty years would have ended in May 2025. That left a little over twelve years in which the patent could be enforced.

Their argument rests on the gap between two provisions. Under section 11A(7), an applicant has the like privileges and rights as if a patent had been granted on the date of publication. The proviso, however, bars any infringement suit until the patent is granted. The petitioners contend that a term running from filing, with no right to sue until grant, is arbitrary. They rely on Article 14 of the Constitution. They asked for the term to run from grant, or for the lost period to be restored.

What the Calcutta High Court decided

On 7 May 2024 Justice Sabyasachi Bhattacharyya dismissed the writ petition (WPA 8691 of 2023) and held section 53 intra vires the Constitution. The court described three stages in the life of a patent: filing to publication, publication to grant, and grant to expiry. It found no conflict between sections 11A(7) and 53. It also noted that Article 33 of the TRIPS Agreement requires a term of not less than twenty years counted from the filing date.

On 22 April 2025 a Division Bench of Chief Justice T.S. Sivagnanam and Justice Chaitali Chatterjee Das dismissed the appeal (MAT 903 of 2024, 2025:CHC-AS:712-DB). Justice Chatterjee Das wrote that the two provisions “operate in two different fields” and that the rights under them cannot be superimposed. The Bench also noted the view of a committee formed by a court in the Nitto Denko matter. That committee found the US model of term adjustment for processing delay “not conducive to India”. It concluded that questions of compensation for delay are best left to the legislature. The duty of the court, it said, is to interpret the law and not to enact it.

What the Supreme Court has not decided

A notice order is not a ruling. The reports do not indicate any stay or any view on the merits. Until the Court rules, section 53 applies to every Indian patent as written.

The Court may uphold section 53. It may also, in theory, read in some form of relief for delay caused by the Office, or invite Parliament to consider the issue. Each outcome raises hard questions, including third party reliance on published expiry dates and how delay should be attributed between the Office and the applicant. We do not predict the result.

How other major systems treat delay in grant

TRIPS sets a floor of twenty years from filing in Article 33. It does not forbid a longer term. Article 62.2 also requires members to grant rights within a reasonable period, so as to avoid unwarranted curtailment of the period of protection. Countries have answered that obligation in very different ways.

United States

Under 35 U.S.C. 154(a)(2) a US patent also expires twenty years from filing. Section 154(b), however, adds patent term adjustment for USPTO delay. So called A delay arises if the Office misses set deadlines. Examples are a first action within 14 months of filing and a response within 4 months of a reply. B delay arises if the patent does not issue within 3 years of filing. C delay covers interferences or derivation proceedings, secrecy orders and successful appeals. Overlapping periods are counted once. The adjustment is reduced for any period in which the applicant failed to engage in reasonable efforts to conclude prosecution. Separately, 35 U.S.C. 156 allows patent term extension of up to five years for time lost in regulatory review of drugs and certain other products.

Europe

Article 63(1) of the European Patent Convention fixes the term at twenty years from filing. Neither the EPO nor the Unified Patent Court system adds term for slow examination. The only compensation is regulatory. Supplementary protection certificates can extend protection by up to five years. Regulation (EC) 469/2009 covers medicinal products and Regulation (EC) 1610/96 covers plant protection products. A further six months may be available for medicines with completed paediatric studies. The United Kingdom keeps a similar certificate scheme administered by the UK IPO and, like the EPO, has no adjustment for examination delay.

China and Japan

Both countries changed their laws recently. Article 42 of the Chinese Patent Law has applied since 1 June 2021. It allows term compensation on request for slow grants of invention patents. The trigger is grant more than four years after filing and three years after the request for substantive examination. Delay caused by the applicant is excluded. For new drugs it allows up to five more years. The total effective term after marketing approval cannot exceed fourteen years. Japan amended Article 67 of its Patent Act in connection with the CPTPP. The change applies to applications filed on or after 10 March 2020. The term can be extended where registration comes after the later of five years from filing or three years from the examination request. Periods attributed to the applicant are deducted. Japan also extends term for drugs and agrochemicals delayed by regulatory approval.

India

India has neither. The Act contains no adjustment for Office delay and no extension for regulatory approval. India does compensate in part through section 11A(7), which lets a patentee claim for the period after publication once the patent is granted. That remedy does not add a single day to the term. This is why the Supreme Court case matters most for long pendency fields. Pharmaceuticals, biotechnology and complex engineering are examples, where an Indian grant can still take years.

Practical steps for applicants and patentees

Whatever the Court decides, the cheapest protection against lost term is speed within the existing rules. Our step by step guide to the Indian patent filing procedure sets out each stage in detail.

File the request for examination early rather than at the 31 month limit. Examination does not start until the request is filed.
Check whether the applicant qualifies for expedited examination in Form 18A. Startups, small entities and applicants who chose India as the International Searching Authority are among the eligible categories.
Request early publication in Form 9 where the invention is already disclosed or commercially exposed. Publication starts the section 11A(7) rights sooner.
Reply to the First Examination Report well inside the deadline and prepare hearings carefully. Avoidable objections cost months.
For international families, plan the PCT timetable with the Indian term in mind. Our article on when to file a PCT application explains how the national phase affects grant timing.

Licensees and generic manufacturers should continue to calculate expiry from the filing date under section 53. They should, however, watch this case before committing to launch plans that depend on an expiry within the next few years. Foreign applicants can find more on Indian prosecution in our patent services overview.

Frequently asked questions

Is there patent term adjustment in India?

No. Under section 53 of the Patents Act, 1970 a patent lasts twenty years from the filing date. The Act has no provision that adds time for delay by the Patent Office or for regulatory approval.

Does the Supreme Court notice change the term of existing patents?

No. The Court has only issued notice on the petition. The Calcutta High Court ruling upholding section 53 stands, and every patent term is calculated as before.

Can a patentee recover anything for the period before grant?

Yes, within limits. Section 11A(7) gives rights from the date of publication, but a suit can only be filed after grant. The term itself is not extended.

Patent term adjustment in India. The Supreme Court will examine section 53.