Section 26 of the Patents Act, 1970
In cases of “obtaining” Controller may treat the patent as the patent of opponent
Where a patent was wrongfully obtained from someone else, this section lets the Controller hand the stolen claims to the rightful owner.
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.
Nothing here replaces the statute. The official wording of the provision, together with any Gazette notification that applies to it, governs. This page only explains that material in ordinary language.
What this section says, in plain language
One of the grounds of opposition is that the invention, or part of it, was wrongfully obtained from the opponent. That is a different complaint from saying the patent is old or obvious. The invention may be perfectly good; the objection is that the wrong person is holding it. Section 26 supplies the remedy that fits that complaint, because simply cancelling the patent would leave the true owner with nothing.
Where the Controller is satisfied on that ground, two things can happen. The Controller may direct that the patent stand amended by deleting the claims that cover the wrongfully obtained matter. Or, on a request made by the opponent in the manner set by the Rules, the Controller may direct that the patent, or the relevant part of it, be treated as the patent of the opponent, so that the person from whom the invention was taken ends up holding the right. Where the amendment route is used and a complete specification is amended under this section, the amendment is published so the public can see what changed.
This is a powerful outcome and it is not given lightly. The opponent has to prove that the substance of the claimed invention came from them, usually through dated records: laboratory notebooks, design files, emails, drawings, minutes of meetings, a non-disclosure agreement, a consultancy contract, or a sample sent for testing. Proving that the two inventions look similar is not enough; the evidence must show a route by which the applicant got hold of the opponent's work.
Section 26 sits alongside a companion provision that lets a true and first inventor apply for a patent where an earlier patent was obtained wrongfully. The two provisions cover the same underlying wrong at different points and use the same official form for the request. Read together, they mean that theft of an invention does not simply destroy the patent; the Act tries to put the right in the right hands.
Why this section matters
Inventors, contractors, suppliers and research partners whose disclosures were used by someone else to file a patent.
In and after opposition proceedings where wrongful obtaining is established.
A power in the Controller to amend the patent by deleting the wrongfully obtained claims, or to treat the patent, wholly or partly, as the opponent's.
A true inventor who only asks for the patent to be cancelled may destroy the right instead of acquiring it.
How it works in practice
The prototype sent for quotation
Meera Iyengar, a product designer in Ahmedabad, sent detailed drawings and a working prototype of a self-cleaning drip irrigation emitter to a manufacturing firm for a costing quotation, under a signed confidentiality agreement. The firm did not quote. Fourteen months later a patent was granted to that firm on an emitter with the same internal flushing geometry. Meera opposed after grant on the ground that the invention had been wrongfully obtained from her. Her evidence was ordinary but dated: the signed agreement, the courier receipt for the prototype, the drawing files with their creation dates, and an email thread in which the firm's engineer asked about the flushing channel. Rather than asking only that the patent be cancelled, she asked the Controller to treat the patent as hers. The Controller was satisfied on the evidence and made that direction. Meera ended the proceedings holding the patent, not merely having spoiled someone else's.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The section operates where wrongful obtaining is established in opposition proceedings.
- The Controller can order the patent amended by deleting the wrongfully obtained claims.
- On the opponent's request, the Controller can instead direct that the patent, or the relevant part, be treated as the opponent's patent.
- The opponent must ask for that relief in the manner and on the form set by the Rules; it is not automatic.
- Proof of a route of communication, not just similarity of the inventions, is what carries a wrongful obtaining case.
- Where a complete specification is amended under this section, the amendment is published.
Common mistakes and misunderstandings
- Asking only for revocation when the real goal is ownership. If you want the patent, you must request that it be treated as yours.
- Assuming that similar products prove theft. The evidence has to show how the other side came to know your invention.
- Leaving disclosures undocumented. Without dated files, signed confidentiality terms and a paper trail, a wrongful obtaining case is very hard to run.
Connected provisions
The Patents Act sets the requirement; the Patents Rules, 2003 set the procedure that carries it out. Parliament passes the Act and the Central Government makes the Rules, so the two are separate instruments. We list the connected rules here to take you from the principle to the paperwork.
Forms, deadlines and fees
- Form 12 (check the current Second Schedule)
The Second Schedule to the Patents Rules contains the prescribed forms. A form that has been amended will not match an older saved copy, so take a fresh download from the official site before you fill anything in.
- The underlying opposition must itself be brought within the time allowed by section 25, so a post-grant challenge must be filed within twelve months of the publication of the grant.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
This site does not carry a fee table. The First Schedule to the Patents Rules is the source, the rates vary with the applicant's category and with the mode of filing, and a figure quoted second-hand goes out of date quietly. 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 26
What does obtaining mean in patent law?
It means the person who filed did not devise the invention but took it from someone else, usually after being told about it in confidence or in the course of a business relationship. It is about the source of the invention, not its quality. A wrongfully obtained invention can be brand new and thoroughly inventive; the objection is that the applicant was not entitled to file for it.
Can I take over a patent that was filed using my invention?
That is exactly what this section is designed to allow. If wrongful obtaining is established in opposition proceedings, you can request that the patent, or the part of it covering your invention, be treated as your patent rather than simply cancelled. The request must be made in the manner set by the Rules. Whether the Controller makes the direction depends on the strength of your evidence.
What evidence do I need?
Dated, contemporaneous material that shows both what you invented and how the other side learned of it. Laboratory notebooks, versioned design files, signed non-disclosure agreements, purchase orders, courier receipts, testing reports and email threads all help. Witness statements alone are weak. Build the file at the time you disclose, because reconstructing it years later after a patent surfaces is rarely convincing.
Is this the same as correcting the inventor's name?
No. Correcting or adding an inventor's name is about credit and the record, and it does not move ownership. This section moves the right itself, or removes the claims that were taken. If your complaint is that you were left off the list of inventors but ownership is not disputed, the mention of inventor provisions are the correct route.
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