Section 92 of the Patents Act, 1970
Special provision for compulsory licences on notifications by Central Government
Lets the Controller grant compulsory licences quickly once the Central Government notifies a national emergency, extreme urgency or public non-commercial use.
Official legal text
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What this section says, in plain language
Section 92 is the fast route. It exists because the ordinary path under Section 84 is not built for a crisis: it requires three years to pass since grant, prior negotiation with the patentee, and a contested proceeding. When the country faces an emergency, that timetable is of no use.
The trigger is a decision by the Central Government, not by a private party. Where the Government is satisfied that circumstances of national emergency, or of extreme urgency, or a case of public non-commercial use exist, it may make a declaration to that effect by notification in the Official Gazette, identifying the patent concerned. Once that notification is issued, the Controller must, on an application by any interested person, grant a compulsory licence over that patent. The application is made on Form 17 under Rule 96 with the fee prescribed in the First Schedule.
The three-year wait in Section 84 does not apply here, and neither does the requirement that the applicant should first have tried to obtain a voluntary licence. The section also allows the Controller to dispense with the Section 87 procedure, so publication, service and opposition need not hold the matter up in the situations the Act identifies, including public health crises such as HIV and AIDS, tuberculosis, malaria and other epidemics. The patentee is informed as soon as is practicable.
On terms, the Controller has a specific instruction. He must endeavour to secure that the articles manufactured under the licence are available to the public at the lowest prices consistent with the patentee deriving a reasonable advantage from its patent rights. That is a stricter pricing standard than the general one in Section 90.
Because the section depends on a Government notification, it cannot be triggered by a company simply asserting that a crisis exists. Industry usually approaches the relevant Ministry with evidence of shortage, price or capacity, and the Government then decides whether to notify. Once notified, the licensing step before the Controller is comparatively quick.
Why this section matters
The Central Government, manufacturers able to supply during a crisis, public-health authorities, and patentees whose products become critical.
During a declared national emergency or extreme urgency, or where the Government wants the invention for public non-commercial use.
A power in the Government to notify, and a corresponding duty on the Controller to grant a licence to an interested applicant on notified patents.
Applying under this section without a Gazette notification in place is premature and the application cannot succeed on that basis.
How it works in practice
A notified antiviral during an epidemic
An epidemic spreads across several states and a patented antiviral becomes critical. Indian supply is short, imports are slow, and the patentee's single overseas plant is committed elsewhere. After reviewing shortage data from state health departments and manufacturing capacity assessments, the Central Government issues a notification in the Official Gazette declaring circumstances of extreme urgency in relation to that patent. Within days, Aarogya Formulations Pvt Ltd of Hyderabad and two other manufacturers apply to the Controller on Form 17. They do not have to show that three years have passed since grant, nor that they first sought a voluntary licence. The Controller grants licences and sets terms, taking care that the medicine reaches patients at the lowest price consistent with the patentee receiving a reasonable advantage. The patentee is informed as soon as practicable and receives remuneration under the order, but the ordinary publication and opposition steps do not delay supply.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- A Central Government notification in the Official Gazette is the trigger; a private applicant cannot create it.
- Grounds are national emergency, extreme urgency, or a case of public non-commercial use.
- The three-year waiting period and the prior-negotiation requirement do not apply.
- The Section 87 procedure can be dispensed with in the situations the Act identifies, including named public health crises.
- The Controller must aim at the lowest prices consistent with the patentee getting a reasonable advantage.
- Applications are still made on Form 17 under Rule 96 with the prescribed fee.
Common mistakes and misunderstandings
- Thinking any company can declare an emergency. Only the Central Government can issue the notification that opens this route.
- Assuming the patentee gets nothing. The patentee is entitled to remuneration; the pricing standard is stricter, not zero.
- Confusing this with Government use under Sections 99 to 100, where the Government itself uses the invention rather than licensing a manufacturer.
- Expecting the notification to cover a whole disease area. It relates to the patents and circumstances it identifies.
Connected provisions
- ActSection 84Compulsory licences
- ActSection 87Procedure for dealing with applications under sections 84 and 85
- ActSection 90Terms and conditions of compulsory licences
- ActSection 92ACompulsory licence for export of patented pharmaceutical products in certain exceptional circumstances
- ActSection 100Power of Central Government to use inventions for purposes of Government
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
Prescribed forms sit in the Second Schedule to the Patents Rules. The Schedule is updated along with the Rules, so the safe practice is to download the form on the day you prepare it and check that it is the current version.
- No three-year post-grant waiting period applies once the Central Government has issued the notification.
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 92
How is Section 92 different from Section 84?
Section 84 is applicant-driven and slow by design. You wait three years from grant, try to negotiate a licence, and then run a contested proceeding with publication, opposition, evidence and a hearing. Section 92 is Government-driven and fast. It starts with a Gazette notification declaring a national emergency, extreme urgency or public non-commercial use. After that the waiting period and prior negotiation fall away, the Section 87 procedure can be dispensed with, and the Controller applies a stricter pricing standard when settling terms.
Does the patentee get paid under a Section 92 licence?
Yes. A compulsory licence is not confiscation. The Controller settles terms including remuneration, and the section requires him to aim at the lowest prices for the public consistent with the patentee deriving a reasonable advantage from its patent rights. So the patentee's return is deliberately constrained during a crisis, but it is not eliminated. The patentee is also to be informed as soon as practicable when the ordinary procedural steps have been dispensed with.
Can a company ask the Government to issue a notification?
There is no formal application procedure in the Act for the notification itself. In practice, manufacturers, industry associations, public-health bodies and state authorities put material before the concerned Ministry showing shortage, unaffordable pricing, or an inability of existing supply to meet demand, along with evidence of available Indian capacity. The Government decides whether the statutory circumstances exist. Only after a notification is published can an interested person usefully apply to the Controller under this section.
Need a compulsory licence during a public health emergency?
MYCrave prepares Section 92 applications and the supporting shortage, capacity and pricing evidence Ministries and the Controller expect.
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