Section 44 of the Patents Act, 1970
Amendment of patent granted to deceased applicant
Section 44 lets the Controller substitute the right person on a patent granted to an applicant who had died or ceased to exist.
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.
Read this as a plain-language summary. If it and the official text, or a relevant Gazette notification, say different things, the official text and the notification are what count.
What this section says, in plain language
Patent prosecution in India commonly runs for several years. Over that period people die and companies disappear. A sole inventor applicant may pass away while a first examination report is pending. A private limited company may be struck off, wound up, or absorbed into another company through an amalgamation. If the Patent Office is not told, the patent is granted in the name of a person or entity that no longer exists.
That produces a defective title document. An assignment cannot properly be executed by a person who has died. A licensee's lawyers will not accept a grant in the name of a dissolved company. An infringement suit brought in that name invites an immediate objection about who the plaintiff really is. The problem is administrative in origin but expensive in effect.
Section 44 provides the correction. If the Controller is satisfied that the person to whom the patent was granted had died, or in the case of a body corporate had ceased to exist, before the patent was granted, he may amend the patent by substituting the name of the person to whom the patent ought to have been granted. That is the legal representative or heir of a deceased applicant, or the successor entity after an amalgamation or transfer.
The effect is retrospective, and that is the valuable part. Once amended, the patent has effect and is deemed always to have had effect as if it had been granted to the substituted person. There is no gap in the chain of title, which matters for acts of infringement committed before the correction was made and for transactions entered into in the meantime.
Procedurally, an application is made to the Controller under Rule 75 with proof. For an individual that usually means the death certificate together with succession documents, a will or letters of administration. For a company it means the scheme of amalgamation or transfer, the order approving it where one exists, and the corporate registry records showing what happened to the original entity. The Controller may require further evidence and may hear the parties, and the register should be brought into line as well.
Section 44 should not be confused with its neighbours. Section 20 deals with substitution of applicants before grant. Sections 57 and 59 deal with amendment of the application or specification, that is, with what the patent says rather than who owns it. Section 78 deals with correction of clerical errors. Section 44 addresses one specific defect: the grantee did not exist at the moment of grant.
Why this section matters
Heirs and legal representatives of deceased inventors, successor companies after amalgamation, and anyone acquiring or licensing a patent with a defective grantee name.
It arises after grant, usually when the defect is discovered during an assignment, a licensing negotiation, a funding round or before filing an infringement suit.
It creates a power in the Controller to substitute the correct proprietor on the patent, with retrospective effect from the date of grant.
The patent remains in the name of a person or entity that does not exist, blocking assignments and licences and creating an obvious objection in enforcement proceedings.
How it works in practice
A patent granted to a company that no longer existed
Vaidya Diagnostics Pvt Ltd of Pune files an application for a rapid test cartridge. Four years later, while the application is still under examination, Vaidya is amalgamated into Sahyadri Biolabs Pvt Ltd and the original company ceases to exist. Nobody informs the Patent Office, and eighteen months after that the patent is granted in the name of Vaidya Diagnostics Pvt Ltd. The defect surfaces when Sahyadri negotiates a licence with a diagnostics distributor and the distributor's lawyers refuse to accept a licence from an entity that is not the recorded patentee. Sahyadri applies to the Controller under section 44 and Rule 75, producing the scheme of amalgamation, the approving order and the corporate registry records showing the date on which Vaidya ceased to exist. The Controller substitutes Sahyadri's name on the patent. Because the amendment is deemed always to have had effect, the licence proceeds and an earlier infringement claim is not left with a gap in title.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- It applies where the grantee had died, or a body corporate had ceased to exist, before the patent was granted.
- The Controller may substitute the name of the person to whom the patent ought to have been granted.
- The amended patent is deemed always to have had effect in favour of the substituted person, so there is no gap in title.
- An application is made to the Controller under Rule 75, supported by proof of death or of the corporate change.
- The register should be updated as well, alongside the recording provisions for assignments and transmissions.
- It is different from substitution of applicants before grant, and from amendment of the specification.
Common mistakes and misunderstandings
- Assuming an assignment can simply be executed later. A deceased person cannot assign, and a dissolved company cannot sign, so the patent itself has to be corrected first.
- Confusing this with section 57. Section 57 changes what the specification says; section 44 changes who the patent belongs to.
- Leaving the defect until enforcement. It is far cheaper to correct the record when the death or amalgamation happens than to face the objection in court.
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 Act does not tie this correction to a fixed period, but the application should be made as soon as the defect is discovered.
- Changes in ownership should also be recorded in the register under the provisions dealing with assignments and transmissions.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Fees are prescribed in the First Schedule to the Patents Rules. Because the Schedule is revised from time to time, and charges different amounts to different categories of applicant and for physical as against electronic filing, this page describes the fee without stating a figure. How Indian patent fees work.
Related judgments
You will not find case summaries under this heading today. Each one must pass a legal review before it appears, and that work has not been completed for this provision. If you are researching decided cases, use a law report or a court database in the meantime. How case notes are prepared.
Questions people ask about Section 44
The inventor died before grant and the patent issued in his name. What do we do?
The legal representative applies to the Controller under section 44, using the form and procedure set out in Rule 75, and asks for the patent to be amended by substituting the name of the person to whom it ought to have been granted. The application has to be supported by evidence, normally the death certificate together with succession documents such as a will, probate or letters of administration. Once the Controller is satisfied and makes the amendment, the patent is treated as having always had effect in favour of the substituted person.
Does the correction affect the date or the term of the patent?
No. Section 44 changes who the patent belongs to, not when it starts or how long it lasts. The date of the patent remains the filing date under section 45 and the term continues to run from that date under section 53. Renewal fees are unaffected in their timing, although whoever is now recorded as proprietor should make sure they are paid. The retrospective effect of the amendment is about title, not about the life of the patent.
Our company was merged into another. Is section 44 the right route?
It is, if the original company had already ceased to exist before the patent was granted. That is the defect section 44 is designed to cure. Where the company still existed at grant and the transfer happened afterwards, the position is different and the change is dealt with through the provisions for registering assignments and transmissions in the register. The distinction turns on the date the company ceased to exist compared with the date of grant, so those two dates should be established first.
Is your patent in the name of a dissolved company?
MYCrave Consultancy prepares section 44 substitution applications with the right evidence so your title is clean before you license or enforce.
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