Section 79 of the Patents Act, 1970
Evidence how to be given and powers of Controller in respect thereof
Provides that evidence before the Controller is normally given by affidavit, with power to take oral evidence or allow cross-examination.
Official legal text
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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
Contested matters before the Controller turn on facts as well as law. Was a product on sale before the priority date? Did an employee disclose the invention at a seminar? Is the patented medicine available to the public at a reasonable price? Section 79 sets the default method for proving such facts: evidence is given by affidavit, unless the Controller directs otherwise.
Affidavit evidence keeps proceedings efficient. Each side files sworn statements with documents annexed as exhibits, and the Controller reads them alongside the written submissions. Rule 126 deals with the form of affidavits, including how they are sworn and before whom, and Rule 127 with exhibits. An affidavit that is unsworn, sworn before the wrong person, or full of argument rather than facts within the deponent's knowledge, is worth very little.
The Controller is not locked into paper. Where it is right to do so, the Controller may take oral evidence instead of or in addition to affidavit evidence, and may allow any party to be cross-examined on the contents of an affidavit. This is the safety valve for cases where credibility genuinely matters, such as a disputed account of a public demonstration years earlier, or a claim of prior use supported only by an interested witness.
In opposition proceedings the evidence stages are structured by their own rules, which set out when the opponent files evidence, when the patentee replies, when reply evidence may be filed, and when further evidence needs the Controller's leave. Section 79 supplies the method; those rules supply the sequence. A party that files evidence out of turn without leave should expect it to be shut out.
Why this section matters
Opponents and patentees in pre-grant and post-grant opposition, compulsory licence applicants and patentees, and anyone proving facts before the Controller.
At the evidence stage of any contested proceeding before the Patent Office.
A default rule that evidence is by affidavit, and a discretion in the Controller to take oral evidence or permit cross-examination.
Key facts go unproved because they were asserted in submissions rather than sworn to, and an otherwise strong case collapses on the evidence.
How it works in practice
Proving a prior public demonstration
In a post-grant opposition to a patent on a solar dryer tray, the opponent, a Nashik farm equipment cooperative, says the design was demonstrated publicly at a district agricultural fair a year before the priority date. Its written submissions assert this in a paragraph, with a photograph pasted in. The patentee replies that there is no evidence of when the photograph was taken or what it shows. Realising the gap, the opponent files affidavits from the fair organiser, who exhibits the stall allotment record and the printed programme, and from a farmer who bought a tray at the fair and exhibits the cash receipt. The patentee disputes the receipt and asks to cross-examine the farmer. The Controller allows limited cross-examination on that single issue. The receipt survives, the prior demonstration is established, and the novelty objection succeeds. The lesson is that facts must be sworn to by someone who knows them, with contemporaneous documents attached.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Affidavit evidence is the default in proceedings before the Controller.
- Rule 126 governs the form of affidavits and Rule 127 governs exhibits.
- The Controller may take oral evidence in place of or in addition to affidavits.
- Cross-examination on an affidavit can be allowed where credibility is genuinely in issue.
- Affidavits should state facts within the deponent's knowledge, with documents exhibited, not argument.
- Opposition rules control the sequence and timing of evidence; leave is needed for further evidence.
Common mistakes and misunderstandings
- Putting facts only in written submissions. Submissions are argument; they do not prove anything.
- Filing an affidavit by a lawyer or agent about events they did not witness. The right deponent is the person with direct knowledge.
- Assuming cross-examination is available on request. It is a discretion, exercised where a real factual dispute needs testing.
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
- Evidence in opposition proceedings must be filed within the periods fixed by the opposition rules, and further evidence generally requires the leave of the Controller.
- Where an extension of a rule-based period is needed, it must be requested under the general extension provisions rather than assumed.
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
No judgment summaries appear here yet. Our process requires a legal review of each case note before publication, covering the citation, the court and the point actually decided. Until a note for this provision has passed that check, the section stays empty rather than carrying unverified material. How case notes are prepared.
Questions people ask about Section 79
Who should swear the affidavit?
The person with direct knowledge of the facts. For a prior sale, that is the seller, the buyer or the person who kept the records. For laboratory results, it is the scientist who ran the experiment. For a company record, it is an officer who can speak to how the record is kept. An affidavit that says I am informed and believe carries far less weight than one from the person who was actually there, and a technical expert should confine themselves to opinion within their field.
Do exhibits have to be originals?
Exhibits are annexed and identified in the manner the Rules require, and they must be capable of being connected to the affidavit that speaks to them. Copies are commonly used, but if authenticity is challenged, the party relying on the document may be required to produce the original, and the Controller has power to require production. Keep the originals safe from the moment a dispute looks likely.
Can I file evidence after the deadline?
Further evidence generally needs the leave of the Controller, and leave is not given as a matter of routine. You would have to explain why the material could not have been filed earlier and why it matters to the outcome. The safer approach is to plan the evidence at the start of the proceeding, because a strong document produced too late may never be looked at.
Is a false affidavit before the Controller a serious matter?
Yes. Proceedings before the Controller are treated as judicial proceedings for the purposes of the law on false evidence, so a person who knowingly swears an untrue affidavit is exposed to criminal consequences as well as to the collapse of their case. Deponents should read what they sign, and a party should never file an affidavit drafted for a witness who has not verified every sentence.
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