Form 26 — Authorisation of a Patent Agent
Form 26 is the document by which an applicant authorises a patent agent to act on their behalf before the Patent Office.
What Form 26 is for
Most dealings with the Indian Patent Office are conducted through an agent, and the office needs written authority before it will accept instructions from one. Form 26 provides that authority. It is the power of attorney in patent practice: it names the agent, identifies the person giving the authority, and states that the agent may act in the matter. Section 127 sets out the rights of a registered patent agent, and Rule 135 deals with agency.
Filing it achieves something narrow but essential. It makes the agent the channel through which the office communicates and through which documents are signed and filed. Without it, the office deals directly with the applicant, and correspondence goes to the applicant's own address for service. With it, official communications reach the agent, and the agent can respond to requirements, file amendments and attend hearings.
The authority can be given for a single application or in wider terms covering several matters, and it can be revoked and replaced. Where an applicant changes agent, the new authority is filed and the position of the previous agent is dealt with as the Rules require. Because the forms are amended from time to time, download the current Form 26 from the Indian Patent Office, and note that stamping and execution requirements apply to a power of attorney.
Who files it, and when
The applicant, the patentee, an opponent or any other party to a proceeding gives the authorisation, and the person authorised must be a registered patent agent or a person otherwise entitled to act under the Act. Where there are joint applicants, all of them normally join in the authorisation. A company gives it through a person duly authorised to sign on its behalf, and the authority to sign should itself be capable of being demonstrated if questioned.
It is filed at the start of the agent's engagement, usually with the first document the agent files. Where an agent files an application before the signed authorisation is available, the Rules provide for the position to be regularised within the period they allow, so the current text should be checked rather than assumed. A fresh authorisation is filed when the agent changes, when the applicant changes following an assignment, or when the scope of the existing authority no longer covers what is needed.
How it is filed
- Choose a registered patent agent and agree the scope of the engagement.
- Download the current Form 26 and complete it with the details of the party giving the authority and the agent receiving it.
- Decide whether the authority covers a single application or a wider set of matters, and state that clearly.
- Have it executed by the applicant or by a duly authorised signatory, and attend to stamping as required.
- File it with the first document the agent files, or within the period the Rules allow after that filing.
- Update the address for service so that official communications go to the agent.
- File a fresh authorisation when the agent or the applicant changes, and deal with the previous agent's position.
What the form asks for
- The name and address of the person giving the authority.
- The name, registration particulars and address of the patent agent being authorised.
- Identification of the application, patent or proceeding, or a statement that the authority is general.
- The scope of the authority being given, including whether the agent may sign and file on the party's behalf.
- Execution by the party or an authorised signatory, with the date.
- The address for service in India to which communications should be sent.
Described in general terms. Form contents are prescribed in the Second Schedule and change — download the current version from the Patent Office rather than working from any summary, including this one.
Common mistakes with Form 26
- Filing an authorisation signed by someone who cannot demonstrate authority to sign for the company.
- Leaving the authorisation until a deadline is imminent, when the agent needs it to file the document that meets the deadline.
- Changing agent without filing a fresh authorisation, so the office continues to deal with the previous agent.
- Assuming an authorisation for one application covers a whole portfolio, when its terms are limited to that application.
- Overlooking the position of joint applicants, where all of them normally need to join in the authority.
What happens if it goes wrong
Without a valid authorisation on file, the office is entitled to deal with the applicant directly, and documents filed by an unauthorised person may not be accepted. That can be fatal at a deadline, because a reply filed by an agent whose authority is not on record may not count as filed. Where an authorisation is out of date after a change of ownership or a change of agent, official communications may go to the wrong party, which is a recurring cause of missed examination reports and missed renewals.
A change of agent at a Surat textile machinery company
This is a simplified illustration. Tapi Machineworks Pvt Ltd of Surat has two pending applications handled by an agent in Mumbai. The company decides to move its work to a Bengaluru firm closer to its new research unit. It signs a fresh Form 26 in favour of the new agent, covering both applications by number, executed by its managing director whose authority to sign appears in a board resolution the company keeps on file. The new agent files the authorisation and updates the address for service, and the previous agent's position is dealt with as the Rules require. Two weeks later an examination report issues on one of the applications. Because the record already shows the new agent and the new address for service, the report reaches the right desk immediately. Had the change been left undone, the report would have gone to an office that was no longer instructed.
Simplified illustration only. Actual outcomes depend on the facts.
Questions about Form 26
Do I need a patent agent to file in India?
An applicant may act on their own behalf in the ways the Act permits, and many individual inventors file their own applications. What an applicant cannot do is have an unregistered third party act for them as agent. Section 127 sets out the rights of a registered patent agent, and the Act deals separately with practice by persons who are not registered. Most applicants use an agent because drafting and prosecution are specialised, and where they do, the authorisation puts that agent on record.
Can one authorisation cover several applications?
Yes, an authorisation can be given in general terms covering more than one matter, or it can be limited to a single application. The scope should be stated clearly, because the office acts on what the document says. Portfolios that grow over time are often handled with a general authority, so that new filings do not each require a fresh document. Where an authorisation is limited and a new matter arises, a fresh authorisation is filed for that matter.
How do I change my patent agent?
A fresh authorisation is executed in favour of the new agent and filed, and the position of the previous agent is dealt with in the manner the Rules provide. The address for service should be updated at the same time, because that is where official communications go. It is good practice to make sure the outgoing agent transfers the file, including the correspondence history and the diary of pending dates, so that nothing is lost in the handover. Deadlines do not pause while agents change.
What happens if the authorisation is filed late?
The Rules provide for the position where an agent files a document before the signed authorisation is on record, and allow it to be furnished within the period they specify. Because that period has been the subject of amendment, the current text should be checked. The safe practice is to have the authorisation signed and available before the agent files anything, particularly where the filing is meeting a deadline, since the validity of the filing should not depend on a later document arriving in time.
Appointing or changing a patent agent in India?
MYCrave Consultancy & Services helps applicants put the right authorisation and address for service on record.