Section 77 of the Patents Act, 1970
Controller to have certain powers of a civil court
Gives the Controller specified powers of a civil court, including summoning witnesses, taking affidavit evidence, awarding costs and reviewing decisions.
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
Proceedings before the Controller are not casual office correspondence. Section 77 arms the Controller with a defined list of civil court powers so that contested matters such as post-grant oppositions, compulsory licence applications and entitlement disputes can be decided properly. The powers include summoning any person and enforcing attendance, examining a person on oath, requiring the discovery and production of documents, receiving evidence on affidavit, issuing commissions for the examination of witnesses or documents, and awarding costs.
Two further powers matter enormously to applicants. The Controller can review his own decision on an application made in the prescribed manner and within the prescribed time, and can set aside an order passed ex parte, again on an application made in the prescribed manner and time. Review is the route where the Controller has overlooked a document or made an error apparent on the record. Setting aside is the route where an order was passed because a party did not appear, for example when a hearing notice never reached them. Rule 130 governs both, and the window is short, so check the current Rules the moment you learn of the order.
Costs awarded by the Controller are not symbolic. An order for costs made under this section is executable as if it were a decree of a civil court, so an unsuccessful opponent who ran a hopeless case can be made to pay, and the winner does not have to start a fresh suit to collect. The scale of costs is set out in the Rules.
Because these are court-like powers, proceedings before the Controller are treated as judicial proceedings for the purposes of the law on giving false evidence, and the Controller is treated as a court for the limited purposes connected with that. That is why affidavits filed in an opposition should be drafted as carefully as an affidavit filed in court, and why a witness who signs an untrue affidavit is exposed to real consequences.
Why this section matters
Parties to oppositions, compulsory licence applications, entitlement disputes and any contested hearing before the Controller, and applicants who missed a hearing.
Whenever a matter before the Controller becomes contested or evidence is needed, and immediately after an adverse or ex parte order.
Court-like powers in the Controller to compel evidence and attendance, to award enforceable costs, and to review or set aside orders.
A party loses the chance to test the other side's evidence, or lets the short review and setting aside windows expire and is left only with an appeal.
How it works in practice
An ex parte refusal after a notice went astray
Ilavarasi Foods Pvt Ltd, Madurai, is prosecuting an application for a continuous roasting drum. A hearing notice is sent to the address for service, but the agent has moved office and the courier is returned. The Controller, hearing nothing, passes an order refusing the application in the company's absence. Ilavarasi learns of it three weeks later from the online status page. Rather than filing an appeal straight away, its new agent applies to the Controller to set aside the order passed ex parte, explaining what happened, attaching the courier record and the change of office, and filing within the short period the Rules allow. The Controller is satisfied that the absence was neither deliberate nor negligent, sets aside the order, and fixes a fresh hearing. At that hearing the company argues the inventive step point on its merits. Had it waited, the setting aside window would have closed and the only route left would have been an appeal to the High Court.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The Controller can summon and examine witnesses on oath and require production of documents.
- Evidence is normally received on affidavit, and commissions can be issued for examining witnesses.
- The Controller can award costs, and a costs order is executable like a civil court decree.
- A decision can be reviewed by the Controller on an application made in time under the Rules.
- An order passed ex parte can be set aside on a timely application under the Rules.
- Proceedings are treated as judicial proceedings for the law on false evidence.
Common mistakes and misunderstandings
- Confusing review with appeal. Review goes back to the Controller for an error on the record; an appeal under section 117A goes to the High Court on the merits.
- Filing an affidavit loosely drafted from memory. Affidavits here carry the same exposure as affidavits in court.
- Letting the review or setting aside window lapse while deciding what to do. These periods are short and are not extended as a matter of course.
Connected provisions
Sections and rules are different kinds of law. A section is enacted by Parliament, while a rule is made by the Central Government using powers the Act grants. Keeping them apart shows which text you are reading and which of the two is more likely to have been revised recently.
Forms, deadlines and fees
- An application to review a decision, or to set aside an order passed ex parte, must be made in the manner and within the period fixed by Rule 130 - check the current Rules, because the window is short.
- Requests for extension of time in these matters are governed by the general extension provisions and are not automatic.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Where a fee is payable under this provision, the figure comes from the First Schedule. Categories of applicant are charged at different rates, and electronic filing is treated differently from paper filing, so an accurate number can only come from the Schedule in force on the day you file. 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 77
When should I seek review rather than appeal?
Review suits errors the Controller can see on the face of the record - a document that was filed but not considered, an obvious arithmetic or factual slip, or an order that overlooked a submission actually made. Appeal to the High Court under section 117A suits disagreements about the merits, such as whether a claim is obvious over the cited art. Review is faster and cheaper, but the grounds are narrow, and choosing it wrongly can waste the appeal period, so decide quickly with advice.
Can the Controller order the other side to produce documents?
Yes, the power to require discovery and production of documents is expressly included. In practice it is used sparingly and usually where a specific, identified document matters to a contested issue - for example, a document said to prove prior public working, or an agreement relevant to entitlement. Broad fishing requests are unlikely to succeed, so identify the document and explain why it is necessary.
Are witnesses cross-examined before the Controller?
Evidence is normally given by affidavit, and cross-examination is not routine. Section 79 lets the Controller take oral evidence in place of or in addition to an affidavit, and allow a party to be cross-examined on the contents of an affidavit, where that is the right course. A party who wants cross-examination should apply, identify the disputed factual issue precisely, and explain why the affidavit cannot fairly be tested on paper.
How are costs recovered if the losing party does not pay?
A costs order made by the Controller can be executed as a decree of a civil court, so you take the order to the appropriate court for execution rather than filing a fresh case. The amounts follow the scale of costs in the Rules, so they are usually modest compared with actual legal spend. Their main value is deterrent: they discourage tactical oppositions and repeated adjournments.
Facing a contested hearing before the Controller?
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