Section 52 of the Patents Act, 1970
Grant of patent to true and first inventor where it has been obtained by another in fraud of him
Section 52 allows a patent to be granted to the true and first inventor after the wrongly obtained patent is revoked.
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.
Treat this page as a guide. The provision as officially published, along with the Gazette notifications that apply to it, remains the governing text and overrides any simplification here.
What this section says, in plain language
Sometimes a patent ends up in the wrong hands. A collaborator files on an idea that was not his, an employee takes a design to a new employer, or a consultant patents what a client disclosed in confidence. Section 64 allows such a patent to be revoked on the ground that it was obtained wrongfully and in contravention of the rights of the person bringing the petition. Section 52 deals with what happens next, so that the real inventor is not left with nothing after winning.
Where a patent has been revoked on that ground, or where in a revocation petition the High Court or the Controller, as the case may be, orders grant to the petitioner, an order may be passed in the same proceeding permitting the grant to the petitioner of the whole or part of the invention. The petitioner then makes the application in the prescribed manner, and the patent that issues bears the date of the patent that was revoked. The true inventor therefore keeps the original priority position rather than starting again years later, when the invention would probably no longer be new.
There is an important restriction. No suit may be brought for any infringement committed before the actual date on which the new patent was granted. So the true inventor gets the original date for the purpose of the patent's own life and validity, but cannot use that backdating to claim damages from third parties for the period before the fresh grant. This protects businesses that acted while the ownership position was unsettled.
Section 52 is one of three related routes in the Act. Section 26 deals with the situation where obtaining is established in opposition proceedings and allows the Controller to treat the patent as the opponent's. Section 20 deals with transfers of interest in a pending application. Section 52 is the post-revocation route, and it is used along with Rule 79, which prescribes how the request for grant under Section 52(2) is made.
Proving that a patent was obtained wrongfully is evidence-heavy work. It usually turns on records of who conceived what and when: lab notebooks with dates, emails, non-disclosure agreements, employment and consultancy contracts, and drafts of the specification. Inventors who keep such records from the beginning are in a far stronger position than those who rely on recollection.
Why this section matters
True and first inventors whose work was patented by someone else, employers and employees in ownership disputes, and companies acquiring patents with a doubtful chain of title.
After a revocation petition succeeds on the ground of wrongful obtaining, or when the deciding authority orders grant to the petitioner.
A right for the successful petitioner to be granted a patent carrying the date of the revoked patent, subject to a bar on claims for earlier infringement.
A wronged inventor may revoke the wrong patent and then find the invention has entered the public domain, leaving nothing to be granted.
How it works in practice
The consultant who filed first
Kestrel Robotics Pvt Ltd of Bengaluru engages an external consultant to help refine a gripper mechanism, under a signed confidentiality agreement. Six months later the consultant files and obtains an Indian patent on the mechanism in his own name. Kestrel petitions the High Court for revocation, relying on dated design files, the confidentiality agreement and meeting notes showing the mechanism was disclosed to the consultant, not by him. The court revokes the patent on the ground that it was obtained wrongfully and in contravention of Kestrel's rights, and orders that a patent be granted to Kestrel. Kestrel makes the request under Section 52(2) in the prescribed manner, and the new patent bears the date of the revoked one, preserving the original position against later filings. Kestrel cannot, however, sue a competitor for copying the gripper during the years the consultant held the patent, because no infringement suit lies for acts before the actual date of the fresh grant.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Section 52 follows a successful revocation on the ground of wrongful obtaining under Section 64.
- The deciding authority may order that a patent be granted to the petitioner in the same proceeding.
- The new patent bears the date of the patent that was revoked, so the original position is preserved.
- No infringement suit lies for anything done before the actual date of the fresh grant.
- Section 26 provides a parallel route where obtaining is established in opposition proceedings.
- Rule 79 prescribes the manner of making the request under Section 52(2).
Common mistakes and misunderstandings
- Thinking revocation alone gives the true inventor the patent. A separate order and request under Section 52 are needed for the fresh grant.
- Expecting to recover damages for the period before the new patent was granted. The Act expressly bars a suit for those acts.
- Waiting to gather evidence until the dispute begins. Contemporaneous records of conception and disclosure are what decide these cases.
Connected provisions
The rules connected to a section are listed on their own because they are subordinate legislation. They cannot go beyond the Act, but they can be changed by notification without a new statute, so seeing them separately makes it easier to check whether the current procedure is still what you remember.
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 request for grant under Section 52(2) must be made in the manner and within the period the Rules prescribe after the order is passed, so check the current Rules and the terms of the order.
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.
Amendment history
What changed in this provision, newest first. Read the footnotes in the official consolidated text for the full record.
- 2021The Tribunals Reforms Act, 2021References to the Appellate Board were removed, leaving the court as the forum.
- 2005The Patents (Amendment) Act, 2005The appellate body then created was added alongside the court in the provisions on granting a patent to the true and first inventor.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
Case summaries are published only after a qualified reviewer has checked the judgment, the citation and the way the holding is described. Nothing has cleared that review for this provision yet, so nothing is listed here. We would rather show no case note than one that misstates what a court decided. How case notes are prepared.
Questions people ask about Section 52
Someone patented my invention. Can I get the patent transferred to me?
The Act does not simply transfer the patent. The usual route is a revocation petition under Section 64 on the ground that the patent was obtained wrongfully and in contravention of your rights. If that succeeds, Section 52 allows the deciding authority to order that a patent be granted to you for the whole or part of the invention, and that patent carries the date of the revoked one. Where the dispute is raised in post-grant opposition instead, Section 26 offers a comparable outcome before the Controller.
Will the new patent have the original filing date?
Yes. A patent granted under Section 52 bears the date of the patent that was revoked. That matters a great deal, because the invention will usually have been published long before the dispute ended, and a fresh application filed at that stage would fail for lack of novelty. Keeping the original date preserves the priority position. The trade-off is that you cannot sue anyone for infringement committed before the actual date on which the new patent is granted.
What evidence proves that a patent was obtained wrongfully?
Courts look for contemporaneous material rather than assertions. Useful evidence includes dated laboratory notebooks and design files, version histories, emails and meeting records showing what was disclosed and by whom, non-disclosure and consultancy agreements, employment terms dealing with inventions, and drafts of the specification. Testimony helps, but documents that existed before the dispute began carry the most weight. Building this record as a matter of routine is far cheaper than reconstructing it under litigation pressure.
Did someone else patent your invention?
MYCrave Consultancy assesses wrongful obtaining claims and prepares the revocation and Section 52 grant strategy end to end.
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