Section 86 of the Patents Act, 1970
Power of Controller to adjourn applications for compulsory licences, etc., in certain cases
Lets the Controller postpone a compulsory licence or non-working case when the patentee proves the delay in working was beyond its control.
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.
The authority is the enacted text, not this page. Where our wording and the official provision, or an applicable Gazette notification, do not match, the official material prevails.
What this section says, in plain language
Some inventions cannot be put on the market quickly. A new drug needs regulatory approval. A new industrial process needs a plant, environmental clearance and trained staff. Section 86 recognises this. Where an application under Section 84 or Section 85 is based on the ground that the invention has not been worked in India or has not been worked on a commercial scale, the Controller can pause the case instead of deciding it immediately.
The test is narrow. The Controller must be satisfied that the time that has passed since the patent was sealed has for some reason been insufficient to allow the invention to be worked on a commercial scale, and that the reason lies outside the patentee's control. Ordinary commercial choices do not qualify. A decision to prioritise other markets, or to wait for better margins, is a choice, not an obstacle.
If the Controller is satisfied, he may adjourn the further hearing of the application for a period he thinks sufficient. There is a ceiling: the adjournment cannot exceed twelve months in the aggregate. That means the patentee cannot obtain one extension after another; all the adjournments under this section, taken together, are capped.
The burden sits on the patentee. It is for the patentee to prove that prompt and diligent steps were taken to start working the invention, and that something outside its hands held the work up. Practical evidence works best: dated regulatory filings, plant orders, clearance applications, supply contracts, and correspondence showing when each step was taken.
The adjournment does not decide anything. When the period ends, the application under Section 84 or 85 resumes at the point it was paused, and the Controller then decides it on the merits, applying the principles in Section 83 and the tests in Sections 84, 89 and 90.
Why this section matters
Patentees defending an application for a compulsory licence or for revocation on the non-working ground, and the applicants opposing an adjournment.
After an application under Section 84 or 85 is filed and before it is decided, where the invention is genuinely on the way to being worked.
A discretionary power in the Controller to adjourn the hearing, capped at twelve months in total, and a corresponding burden of proof on the patentee.
A patentee who does not raise and evidence this defence in time may have the case decided against it while its Indian plant or approval is still pending.
How it works in practice
A plant under construction in Gujarat
Sarvatra Biopolymers Pvt Ltd holds an Indian patent on a biodegradable packaging resin. Three and a half years after grant, a packaging federation applies for a compulsory licence saying the resin is not worked in India. Sarvatra responds that it placed the equipment order in the first year, applied for environmental clearance in the second, and received that clearance only eleven months ago; construction at its Dahej site is now in the final stage and commercial batches are scheduled within six months. It files the purchase order, the clearance application with its date stamp, the regulator's letters, and photographs of the plant with progress certificates. The Controller accepts that the delay came from a clearance process outside Sarvatra's hands, and adjourns the hearing so the company can bring the plant on stream. The pause cannot exceed twelve months in total. If commercial supply has still not started when the case resumes, Sarvatra will have to defend the application on its merits.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Applies only where the application under Section 84 or 85 rests on non-working of the invention.
- The patentee must show the delay in working was for reasons beyond its control.
- All adjournments under this section together cannot exceed twelve months.
- The burden of proof is on the patentee, and dated documentary evidence is what carries it.
- An adjournment only postpones the hearing; it does not dismiss the application.
Common mistakes and misunderstandings
- Treating the twelve months as a right. It is discretionary, and the Controller can refuse if the reasons look commercial rather than genuinely external.
- Asking for repeated adjournments. The cap is on the total, not on each request.
- Relying on assertions instead of records. Undated statements about future plans rarely persuade the Controller that the delay was outside the patentee's control.
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
- Any adjournment granted under this section, counted with all others in the same matter, cannot exceed twelve months.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
The official fee for anything described on this page is set out in the First Schedule to the Patents Rules. It is not the same for every applicant, and it is not the same for online and physical filing, which is why no amount is stated here. 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 86
What kinds of reasons count as beyond the patentee's control?
Things the patentee cannot decide for itself. Waiting on a regulatory or environmental clearance, a licence from another authority, or a statutory approval process is the clearest example. Supply chain failure, a natural disaster affecting a plant, or the need for clinical trial results can also qualify if properly evidenced. What does not qualify is a commercial decision, such as choosing to launch elsewhere first, waiting for a better price point, or simply not having started the Indian project.
Can the compulsory licence applicant object to an adjournment?
Yes. The application is a contested proceeding, and the applicant can argue that the patentee has not shown diligence, that the reasons offered are ordinary commercial ones, or that the evidence does not support the timeline claimed. The applicant can also point out that a long period has already passed since grant. The Controller weighs both sides, since the section only allows an adjournment where he is satisfied on the specific test it sets.
Does an adjournment under Section 86 stop the three-year clock in Section 84?
No. The three-year period in Section 84 runs from the date the patent was granted and is a condition for filing the application. Section 86 operates after the application is already properly before the Controller. It pauses the hearing, not the eligibility to apply. When the adjournment ends, the same application is taken up and decided; the applicant does not have to file again or start the process afresh.
Need more time to bring your invention to market?
MYCrave helps patentees assemble the dated evidence an adjournment under Section 86 depends on, and helps applicants test it.
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.