Section 85 of the Patents Act, 1970
Revocation of patents by the Controller for non-working
Allows the Central Government or an interested person to ask the Controller to revoke a patent that stays unworked after a compulsory licence.
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
Section 85 is the step beyond a compulsory licence. A compulsory licence lets someone else work the invention; it does not end the patent. If, even after a licence has been forced, the underlying problem remains, this section lets the patent itself be cancelled. It is the Act's last answer to a patent that is simply not serving India.
The timing is tied to the first compulsory licence. An application can be made after two years from the date of the order that granted the first compulsory licence on that patent. Either the Central Government or any person interested may apply, using Form 19 under Rule 96 with the fee prescribed in the First Schedule.
The grounds echo Section 84: that the patented invention has not been worked in the territory of India, that the reasonable requirements of the public with respect to the invention have not been satisfied, or that the invention is not available to the public at a reasonably affordable price. The applicant has to set out the facts and, once the Controller is satisfied that a prima facie case exists, the procedure in Section 87 applies, including publication and the chance for the patentee to oppose.
If the Controller is satisfied on any of those grounds, he may make an order revoking the patent. The Act asks that applications under this section ordinarily be decided within one year of being presented. Once made, the revocation order is published in the manner set out in Rule 99, so the public and the register both reflect that the monopoly is gone.
Revocation under this section is different from revocation under Section 64, which is about the validity of the patent itself, such as lack of novelty or insufficient disclosure, and which is decided by the High Court or in a counter-claim in an infringement suit. Section 85 is not about whether the invention deserved a patent. It is about whether the patent has been used the way the Act expects.
Why this section matters
Patentees whose patents are already under a compulsory licence, compulsory licensees, industry bodies, and the Central Government.
Two years or more after the first compulsory licence order on that patent, when working, supply or pricing still has not improved.
A power in the Controller to revoke a granted patent for continued non-working, on the application of the Government or a person interested.
The patentee can lose the patent entirely, after which anyone may work the invention without a licence or royalty.
How it works in practice
Two years on, the tractor patent is still idle
A compulsory licence over a patented seed-drill mechanism was granted in 2021 to a Ludhiana implement maker. The patentee, an overseas agricultural equipment company, kept its own supply to India at a token level and continued to price the assembly far above what most farm cooperatives could pay. Two and a half years later, a federation of implement manufacturers files Form 19 under Section 85. Their evidence is practical: import figures, the patentee's own working statements, dealer price lists, and letters from state cooperatives showing unmet demand. The patentee argues that the compulsory licensee's output should count as working of the invention in India. The Controller has to decide whether the reasonable requirements of the public are now met, whether the price has become reasonably affordable, and whether the invention is worked in India. If he is satisfied on any of those grounds, he may revoke the patent, in which case the mechanism falls into the public domain in India.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Available only after two years from the order granting the first compulsory licence on the patent.
- Either the Central Government or any person interested can apply, on Form 19 under Rule 96.
- The grounds are the same three used for compulsory licences: no working in India, unmet public requirements, or an unaffordable price.
- The Section 87 procedure of prima facie scrutiny, publication and opposition applies.
- Applications should ordinarily be decided within one year of presentation.
- This is revocation for non-working, not revocation for invalidity under Section 64.
Common mistakes and misunderstandings
- Confusing this with Section 64. Section 85 does not question whether the invention was novel or inventive; it questions how the patent has been used.
- Assuming a compulsory licence protects the patentee forever. It only buys time, and the two-year clock in this section starts from that very order.
- Thinking revocation here is automatic. The Controller must be satisfied on the evidence, and the patentee gets a hearing.
Connected provisions
A section of the Act states what the law requires. The detail of complying with it, including forms, periods and office procedure, sits in the Patents Rules, 2003. The Rules are a separate instrument and change far more often, so they are shown alongside rather than folded into the section.
Forms, deadlines and fees
Where a form is required, the Second Schedule to the Patents Rules prescribes it. Superseded versions circulate widely online, so download the current form from the Patent Office and check it against the rule before use.
- An application can be made only after two years from the date of the order granting the first compulsory licence on that patent.
- The Act says such an application should ordinarily be decided within one year of being presented to the Controller.
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
Case law is added slowly and deliberately. A summary is drafted, checked against the reported judgment and then reviewed before publication, because a wrong case note can mislead a reader badly. No summary for this provision has reached publication yet. How case notes are prepared.
Questions people ask about Section 85
How is Section 85 revocation different from Section 64 revocation?
Section 64 attacks the patent's validity: that the invention was already known, was obvious, was not patentable subject matter, or that the specification did not disclose enough. It is decided by the High Court, or as a counter-claim in an infringement suit. Section 85 assumes the patent was properly granted and asks a different question: has it been worked in India, are the public's reasonable requirements met, is the price reasonably affordable. It is decided by the Controller and only after a compulsory licence has already been in place.
Does the compulsory licensee's own production count as working?
It is a relevant fact, and patentees regularly argue that supply through their compulsory licensee shows the invention is being worked and demand is being met. The Controller looks at the overall picture: total Indian supply against demand, price levels, and whether the licensee has been able to operate properly. If the licensee's output has genuinely met the public's requirements at a reasonable price, an application under this section becomes much harder to sustain.
What happens to existing licences if the patent is revoked?
Once a patent is revoked the monopoly ends, so there is no longer any patent right for a licence to operate on. A licensee who was paying royalty for the Indian patent no longer needs permission to work that invention in India. Contracts often cover more than one country or more than one patent, so the commercial consequences depend on how the agreement is drafted. Revocation is also recorded and published so that the register reflects the true position.
Facing revocation of your patent for non-working?
MYCrave helps patentees and applicants prepare the working, supply and pricing evidence a Section 85 proceeding turns on.
You will be speaking with MYCrave Consultancy & Services, the firm that operates this platform. General questions are answered free; matter‑specific work is quoted before anything is done.