Rule 101 of the Patents Rules, 2003
Procedure to be followed in case of applications under section 88(4)
Lays down the notice, opposition, evidence and hearing steps the Controller follows on a section 88(4) revision application.
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.
Read this as a plain-language summary. If it and the official text, or a relevant Gazette notification, say different things, the official text and the notification are what count.
What this rule requires, step by step
An application to revise the terms of a compulsory licence is a contest between two businesses. The licensee wants a lighter burden; the patentee wants to keep the income the Controller originally awarded. Rule 101 makes sure the contest is run fairly, by fixing the order in which the parties speak and prove their case.
The first step is notice. The Controller sends a copy of the application and of the licensee's statement of facts to the patentee, and to any other person who appears from the Register of Patents to have an interest in the patent, such as a registered assignee or an exclusive licensee. Nobody whose money is affected is expected to find out by accident.
The second step is opposition. A person served in this way may oppose the revision by filing a notice of opposition with the Controller within the period the Rules allow, and by sending a copy to the applicant. The Controller can extend that period on a proper request, but an opponent who simply misses it may find the matter decided without their side of the story. If nobody opposes, the Controller still has to be satisfied on the merits before changing the terms.
The third step is evidence. The rule applies the same evidence and hearing machinery used for other contested proceedings before the Controller, so far as it can sensibly be applied. In practice that means each side files evidence by way of affidavit, with documents annexed, in a fixed sequence: the applicant's evidence, then the opponent's, then any reply confined to matters raised by the opponent. Further evidence needs the Controller's leave. Copies of documents relied on must be supplied to the other side.
The final step is the hearing and decision. Either side may ask to be heard, and the Controller gives notice of the date. After the hearing the Controller may revise the terms, refuse to revise them, or revise them differently from what was asked, and must give reasons. The Controller may also deal with costs. Because these steps have real dates attached, and because the exact periods in the Rules have been amended over time, both sides should work from the current text of the Rules and diarise every step.
Why this rule matters
Compulsory licensees seeking revised terms, patentees defending their royalty, and registered assignees or licensees with an interest in the patent.
Immediately after a section 88(4) application is filed, and until the Controller decides it.
A right to be told about the application, a right to oppose and lead evidence, a right to be heard, and a duty on the Controller to decide with reasons.
A party that misses the opposition window or files evidence out of sequence can lose the chance to influence terms that will govern its business for years.
How it works in practice
Two sides of a royalty dispute
After Kalyani Agro Tools Pvt Ltd filed its application to reduce the royalty on a compulsorily licensed solar dryer, the Patent Office sent the application and statement of facts to Sundara Agri Machines Pvt Ltd, the patentee, and also to a Chennai firm shown in the Register as holding a registered interest in the patent. Sundara filed a notice of opposition in time and served a copy on Kalyani. Its evidence, filed on affidavit, argued that Kalyani had chosen an expensive imported aluminium profile when a cheaper Indian one met the specification, and that the losses came from Kalyani's own procurement decisions rather than from the royalty. Kalyani filed reply evidence limited to that point, annexing a metallurgical test report and quotations from two Indian suppliers. Both sides asked to be heard. At the hearing the Controller questioned each on the costing model, then reserved the matter and later issued a reasoned order adjusting the royalty for a defined period.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The Controller serves the section 88(4) application on the patentee and on others shown in the Register as interested.
- Those served may oppose by filing a notice of opposition within the period allowed by the Rules and serving a copy on the applicant.
- Evidence is filed by affidavit in a set sequence, and further evidence needs the Controller's leave.
- Either party may ask for a hearing before the Controller decides.
- The Controller must give a reasoned decision and may also make an order on costs.
- Exact time periods have changed over successive amendments, so always work from the current Rules.
Common mistakes and misunderstandings
- Assuming silence is safe. A patentee who does not oppose leaves the licensee's version of the costs unanswered on the record.
- Filing evidence as plain letters or emails rather than as affidavits with the documents properly annexed.
- Using reply evidence to introduce a whole new case instead of answering what the opponent actually raised.
- Not asking for a hearing and then complaining that the Controller decided on papers alone.
Connected provisions
Every rule traces back to a section. The linked sections are shown apart from the rule because the two are separate instruments, and because a rule that goes beyond its parent section can be challenged. Knowing the parent provision is part of reading the rule properly.
Forms, deadlines and fees
- A notice of opposition to a section 88(4) application must be filed within the period fixed by the current Rules, and a copy served on the applicant; confirm that period before relying on it.
- Evidence must be filed in the sequence and within the periods the Rules provide, and further evidence needs the Controller's permission.
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
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 Rule 101
Who is entitled to be told about a section 88(4) application?
The patentee always is, because the patentee's royalty is directly at risk. Beyond that, the Controller serves anyone who appears from the Register of Patents to be interested in the patent. That can include a registered assignee, a mortgagee, or an exclusive licensee whose interest has been entered under section 69. This is one practical reason to register your interest in a patent: an unregistered interest may not show up when the Patent Office looks for people to notify.
Is a hearing compulsory before the Controller decides?
The Controller does not have to hold a hearing in every case, but a party that asks for one is entitled to be heard before an adverse decision is made against it. This flows from the general duty on the Controller to exercise discretionary powers only after giving an affected party an opportunity of being heard. In practice, on a contested revision of licence terms, a hearing is usual because the Controller will want to test the costing evidence from both sides.
Can the Controller refuse revision even if the licensee proves a loss?
The Controller looks at the whole picture, not one number. If the evidence shows the loss comes from the licensee's own inefficiency, poor purchasing or an over-ambitious business plan, rather than from the licence terms proving heavier than expected, the application can fail. The provision protects a licensee against terms that turned out unworkable; it is not a subsidy for a badly run operation. That is why the opponent's evidence about causes of loss matters so much.
What happens to the licence while the application is pending?
It continues exactly as fixed by the original order. The licensee must keep paying the existing royalty and observing every other condition until the Controller passes a fresh order. Any revision the Controller grants takes effect on the terms and from the date the order specifies. Stopping payment in anticipation of relief puts the licensee in breach and gives the patentee a strong argument at the hearing, so the disciplined approach is to keep performing and keep records.
Facing a hearing on compulsory licence terms?
MYCrave Consultancy prepares oppositions, affidavit evidence and hearing briefs for section 88(4) proceedings before the Controller.
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