Section 89 of the Patents Act, 1970
General purposes for granting compulsory licences
States the two purposes the Controller must aim at whenever he uses the compulsory licensing powers in this chapter.
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 89 is short and easy to overlook, but it directs how discretion is exercised. Sections 84 to 88 give the Controller wide powers. This section tells him what those powers are for, so that a compulsory licence is not granted or refused on a whim.
The first purpose is that patented inventions are worked in India on a commercial scale, without undue delay, and to the fullest extent that is reasonably practicable. That phrase repeats the language of Section 83 and pins the whole chapter to a single idea: an Indian patent is expected to result in real Indian activity, not just an entry on a register.
The second purpose pulls in the opposite direction and balances the first. The interests of any person who is, at the time, working or developing an invention in India under the protection of a patent must not be unfairly prejudiced. In other words, the Controller must not damage a patentee or licensee who is genuinely investing, building capacity and taking risk in India, simply because a competitor would like access.
Read together, the two purposes create a practical test. Where a patentee has done nothing in India and the public is going short, the first purpose dominates. Where a patentee is midway through a serious Indian programme, the second purpose gives it protection, and the Controller may prefer a narrower order, an adjournment under Section 86, or a refusal.
For anyone drafting a compulsory licence application or an opposition, this section is a checklist. Every argument should be tied to one of the two purposes: either that Indian working is not happening as it should, or that the person already working the invention in India would be unfairly harmed by the order sought.
Why this section matters
The Controller when exercising discretion, and both applicants and patentees who need to frame their case in terms the Act recognises.
Throughout any proceeding under Sections 84 to 88, and particularly when the Controller settles what the order should say.
A standard that governs how the compulsory licensing powers are used, rather than a right that anyone can enforce on its own.
Arguments that do not connect to these two purposes tend to carry little weight, and an order that ignores them is vulnerable on appeal.
How it works in practice
Two applicants, two very different outcomes
Two compulsory licence applications reach the Controller in the same month. The first concerns a patented water-testing sensor whose owner, based abroad, has made no sales in India for four years, has no Indian partner, and has refused three licence requests. The applicant, a Bhopal instrument maker, has a factory and orders from state pollution boards. Here the first purpose in Section 89 points strongly towards a licence: nothing is being worked in India and delay is causing real harm. The second application concerns a patented soil-nutrient probe whose patentee, Kestrel Agritech Pvt Ltd, has built a plant near Nagpur, has begun supply to two state agriculture departments, and has signed a licence with a distributor. The applicant simply wants cheaper access. The second purpose in Section 89 protects Kestrel: it is actually working the invention in India and would be unfairly prejudiced by an order made only to help a competitor's margins.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The section governs how the Controller uses the powers in Sections 84 to 88; it is not applied for on its own.
- Purpose one: inventions should be worked in India on a commercial scale, without undue delay, as fully as is reasonably practicable.
- Purpose two: those genuinely working or developing an invention in India under a patent must not be unfairly prejudiced.
- The two purposes balance each other, so a patentee with a real Indian programme is in a much stronger position.
- Good pleadings tie every fact to one of these two purposes.
Common mistakes and misunderstandings
- Treating Section 89 as a separate ground for a compulsory licence. The grounds are in Section 84; this section only guides the discretion.
- Forgetting the second purpose. Applicants often argue only about access and ignore the protection the Act gives to those investing in India.
- Assuming any Indian activity is enough for the patentee. The activity must amount to genuine working or development of the invention, not token sales.
Connected provisions
A section tells you what the law is. A rule tells you how the Patent Office runs it from day to day. The two are kept apart here so that a reader can quote the section accurately and then look up the current rule for the practical steps.
Forms, deadlines and fees
We do not publish fee amounts. The First Schedule sets them, and they differ by category of applicant, such as a natural person, a startup, a small entity or another applicant, and by the mode of filing. Check the Schedule currently in force before you calculate anything. How Indian patent fees work.
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 89
Can I file an application under Section 89?
No. There is nothing to apply for under this section. Applications for compulsory licences are made under Section 84, 91, 92 or 92A, and applications to revoke for non-working under Section 85. Section 89 tells the Controller what he should be aiming at when he decides those applications and when he settles the terms. You use it in argument, not as a filing route. Citing it helps you explain why the order you want fits the Act's purposes.
How does Section 89 differ from Section 83?
Section 83 sets out broad policy principles for the whole chapter, including public health, affordable pricing and abuse of patent rights. Section 89 is narrower and more operational: it identifies the two objectives the Controller must secure when actually exercising the compulsory licensing powers. Section 83 explains why the chapter exists; Section 89 tells the decision maker what to optimise for in a particular case. In practice both are cited together, with Section 83 for context and Section 89 for the balancing exercise.
Does this section protect a patentee who has only just started work in India?
It can. The section protects the interests of a person who is for the time being working or developing an invention in India under the protection of a patent. A patentee that has genuinely begun, for example by commissioning a plant, running trials or signing supply contracts, can point to this purpose and argue that an order now would unfairly prejudice that effort. The strength of the argument depends on evidence of real, dated activity rather than announced intentions.
Building a compulsory licence case the Controller will accept?
MYCrave frames your arguments around the statutory purposes in Section 89 so the discretion is exercised in your favour.
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