Section 115 of the Patents Act, 1970
Scientific advisers
Lets a court appoint an independent scientific adviser to help it understand technical questions in a patent case.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
This is a simplified explanation. Where it differs from the official text of the provision, or from an applicable Gazette notification, the official text and the notification prevail.
What this section says, in plain language
Judges decide questions of law. Patent cases, however, turn on chemistry, electronics, mechanics, biotechnology and software architecture, and the parties usually bring competing experts who contradict each other. Section 115 gives the court a way through. In any suit or other proceeding under the Act, the court may appoint an independent scientific adviser to assist it, or to inquire into and report upon a question of fact or of opinion that the court formulates.
Two features make this different from party expert evidence. First, the court may act on its own, at any time, whether or not any party has applied for it. Second, the adviser is independent: appointed by the court, answerable to the court, and asked to address questions the court itself frames. That helps in cases where each side's expert is, understandably, presenting the technology in the way that suits its client.
The section marks out a boundary. The adviser may be asked about questions of fact or of opinion, but not about the interpretation of law. Construing a claim, applying the test for inventive step and deciding what the Act means remain judicial functions. In practice the court will ask the adviser about matters such as how a device actually works, whether a described process would produce the stated result, what a skilled person in the field would have understood from a document, or whether two chemical routes are technically the same.
The Patents Rules support this by providing for a roll of scientific advisers maintained at the Patent Office. The Rules set out the qualifications required, including a suitable degree in science, engineering or technology and substantial practical or research experience, along with disqualifications and a procedure for removing names from the roll. The court is not confined to the roll and may appoint any other person it considers suitable, but the roll gives a ready pool of qualified people.
Remuneration is fixed by the court and is treated as part of the costs of the proceeding, so the parties ultimately bear it. For litigants this is a point worth planning for. If a case involves genuinely difficult science, an early proposal for an independent adviser, with a clear draft of the questions to be answered, can shorten the trial and reduce the risk of the court preferring the other side's expert simply because that expert explained the technology more clearly.
Why this section matters
Parties to patent suits and other proceedings under the Act, court-appointed experts, and technical professionals who wish to be included in the roll of scientific advisers.
At any stage of a suit or proceeding where a technical question of fact or opinion arises.
A power in the court to appoint an independent scientific adviser, with remuneration forming part of the costs.
Parties who rely only on partisan experts may find the technology poorly explained to the court, and may miss the chance to shape the questions the adviser is asked to answer.
How it works in practice
An adviser settles a technical disagreement
In a suit between two speciality chemical companies over a patented catalyst regeneration process, each side files an expert affidavit. The patentee's expert says the defendant's plant must be using the claimed two-stage oxidation because of the oxygen consumption figures. The defendant's expert says a single-stage route with recycled gas explains the same figures. The judge finds the affidavits irreconcilable and, without any party applying, appoints an independent scientific adviser under Section 115 from the roll maintained at the Patent Office, a retired chemical engineering professor with plant experience. The court frames three questions: whether the recorded oxygen consumption is consistent with either route, whether the by-product profile distinguishes them, and what a skilled chemical engineer would infer from the defendant's plant log. The adviser inspects the material under confidentiality safeguards and reports. The court uses the report to understand the technology, but decides for itself how the claims are to be construed and whether they are infringed, because interpretation is a legal question the adviser cannot answer. The adviser's remuneration is fixed by the court and forms part of the costs.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The court may appoint an independent scientific adviser in any suit or proceeding under the Act.
- It can do so on its own initiative, at any time, without any party applying.
- The adviser assists the court or inquires and reports on questions of fact or opinion framed by the court.
- Questions of legal interpretation, including claim construction, stay with the court.
- A roll of scientific advisers is maintained at the Patent Office under the Rules, with prescribed qualifications and disqualifications.
- Remuneration is fixed by the court and forms part of the costs of the proceeding.
Common mistakes and misunderstandings
- Treating the scientific adviser as another party expert. The adviser is appointed by and reports to the court.
- Expecting the adviser to decide infringement or validity. Those conclusions are for the court.
- Assuming an application is necessary. The court may appoint an adviser on its own motion.
- Ignoring the cost. The adviser's remuneration forms part of the costs the parties will bear.
Connected provisions
You will find the related rules grouped below rather than inside the explanation. The separation is deliberate. The Act and the Rules are distinct legal instruments, and mixing them can lead a reader to attribute a procedural requirement to the statute itself.
Forms, deadlines and fees
The official fee for anything described on this page is set out in the First Schedule to the Patents Rules. It is not the same for every applicant, and it is not the same for online and physical filing, which is why no amount is stated here. How Indian patent fees work.
Related judgments
This part of the page is reserved for summaries of decided cases. They are added one at a time, after review by a person qualified to confirm that the summary matches the judgment. Nothing has been cleared for this provision so far, so there is nothing to show. How case notes are prepared.
Questions people ask about Section 115
Who is a scientific adviser under the Patents Act?
An independent technical expert appointed by the court under Section 115 to assist it, or to inquire and report on questions of fact or opinion that the court formulates in a patent suit or proceeding. The Patents Rules provide for a roll of scientific advisers maintained at the Patent Office, with qualifications based on a degree in science, engineering or technology and substantial practical or research experience. The court is not limited to the roll and may appoint another suitable person.
Can a scientific adviser decide whether my patent is infringed?
No. The adviser addresses questions of fact and technical opinion, such as how a machine works, whether a process would achieve a stated result, or what a skilled person would understand from a document. Questions involving the interpretation of law, including how the claims should be construed and whether the legal tests for infringement or inventive step are met, remain with the court. The adviser informs the judge's understanding; the judgment is the judge's alone.
Do I have to apply for a scientific adviser to be appointed?
You do not. Section 115 allows the court to make the appointment at any time, whether or not any party has applied. That said, a well-timed application can help you. If you propose an adviser and, more importantly, propose the precise technical questions to be answered, you influence the framing of the inquiry. Draft the questions neutrally; a court is more likely to adopt questions that read as genuine technical enquiries rather than as arguments in disguise.
Who pays for the scientific adviser?
The court fixes the remuneration and it forms part of the costs of the suit or proceeding, so the parties bear it and the final allocation follows the court's order on costs. Budget for it in any technically complex case. The expense is usually justified: where the science is genuinely difficult, an independent report can shorten the trial, narrow the issues and reduce the number of expert witnesses each side needs to call.
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