Rule 126 of the Patents Rules, 2003
Form, etc., of affidavits
Lays down how affidavits used as evidence before the Controller must be drawn up, sworn and presented.
Official legal text
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What this rule requires, step by step
Section 79 of the Act says that, in proceedings before the Controller, evidence is normally given by affidavit rather than by a witness speaking in the witness box, although the Controller can take oral evidence where he thinks it right. An affidavit is a written statement of facts that the person making it swears or affirms to be true. Rule 126 sets the standards such an affidavit must meet.
The requirements are about clarity and accountability. The affidavit carries the heading of the matter it belongs to, so it can be linked to the right application or opposition. It is written in the first person, as the deponent's own account. It is divided into numbered paragraphs, each dealing so far as possible with a single point. It states the deponent's full name, description and true place of residence or business, so the reader knows who is speaking and in what capacity. Statements the deponent knows personally must be separated from statements made on information received, and where a statement is on information the source has to be given. Finally it must be sworn or affirmed before a person authorised to administer an oath, and signed, with any alteration or interlineation initialled by the person before whom it is sworn. Where the affidavit is made outside India, it is sworn before an authority competent to administer oaths in that country or before a diplomatic or consular officer.
These are not empty formalities. An affidavit that mixes personal knowledge with hearsay, or that gives no source for a claim, is easy for the other side to attack and easy for the Controller to give little weight. In an opposition where each side relies on affidavit evidence about prior use or common general knowledge, the difference between a carefully drafted affidavit and a loose one can decide the case.
The rule works with Rule 127, which deals with exhibits referred to in an affidavit, and with the opposition evidence rules in Rules 57 to 60, which fix the stages at which each side files its evidence. It also connects to section 77, under which the Controller has certain powers of a civil court, including powers about receiving evidence and requiring documents.
The practical guidance is to draft an affidavit as though it will be cross-examined. Say who you are, say how you know, attach the documents, and do not put opinions into the mouth of a witness who has no basis for them.
Why this rule matters
Opponents, applicants, patentees, experts and anyone filing evidence in a proceeding before the Controller.
At every evidence stage, most commonly in opposition proceedings, compulsory licence applications and contested hearings.
A form and verification standard that evidence must satisfy before the Controller can properly rely on it.
The evidence may be given little or no weight, or may be objected to and effectively wasted.
How it works in practice
An affidavit that did not hold up
In a post-grant opposition about a food dehydration process, the opponent filed an affidavit from a production manager at Kaveri Foods Pvt Ltd claiming that the same process had been used openly at the company's Erode unit years before the patent date. The affidavit was two paragraphs long, gave no dates, did not say whether the deponent had personally seen the process or had been told about it by an older colleague, and referred to production records without attaching them. The patentee's reply affidavit pointed out each defect. The Controller noted that the assertion of prior public use rested on unsourced information and unproduced records, and gave it little weight. Before the hearing the opponent filed a fresh affidavit with numbered paragraphs, the deponent's designation and period of employment, specific dates, a clear statement of what he had seen himself, and copies of the production log as exhibits. That version did the work the first one could not.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Section 79 makes affidavit the normal form of evidence before the Controller.
- The affidavit must be headed with the matter and written in the first person.
- Numbered paragraphs, each dealing with one point, are required.
- The deponent's name, description and true place of residence or business must be stated.
- Personal knowledge must be separated from information, and the source of information given.
- It must be sworn or affirmed before a competent authority, signed, and any alteration initialled.
Common mistakes and misunderstandings
- Filing an affidavit drafted like a lawyer's argument rather than a witness's account of facts.
- Making sweeping claims on information without naming the source, which leaves the statement effectively unsupported.
- Leaving documents unattached, so that the affidavit refers to records the Controller has never seen.
- Assuming an affidavit sworn abroad in any form will be accepted, when the rule specifies who may administer the oath outside India.
Connected provisions
The Patents Rules supply procedure and the Patents Act supplies power. This page covers the procedure, and the sections that give the Controller or the applicant the underlying right or duty are grouped separately so you can move between the two.
Forms, deadlines and fees
- Rule 126 sets the form of evidence, not its timing. The stages for filing evidence in opposition proceedings are fixed by Rules 57 to 60.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
This site does not carry a fee table. The First Schedule to the Patents Rules is the source, the rates vary with the applicant's category and with the mode of filing, and a figure quoted second-hand goes out of date quietly. 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 126
Who can make an affidavit in a patent proceeding?
Anyone with relevant knowledge of the facts: an inventor, an engineer who worked on the product, a distributor who can speak to prior sales, a librarian who can prove when a document was available to the public, or a technical expert giving an opinion within their field. What matters is that the deponent can explain how they know what they say. An affidavit from a senior officer who has simply been handed the file, and who has no direct knowledge, adds very little.
Can an affidavit be sworn outside India?
Yes. Evidence often comes from abroad, particularly in oppositions involving foreign prior use or foreign publications. The affidavit must be sworn or affirmed before a person authorised to administer oaths in that country, or before a diplomatic or consular officer, so that the office can see it was properly taken. Build in time for this: arranging notarisation abroad, and any legalisation required, takes longer than people expect, and evidence stages in opposition proceedings do not wait.
What happens if my affidavit does not follow Rule 126?
It is not automatically thrown out, but it becomes vulnerable. The other side will point out the defects, and the Controller may give the evidence reduced weight, especially where the defect goes to reliability, such as an unsourced statement of information or an unproduced document. In some cases the Controller may allow the defect to be cured. The safer course is to get the form right first time, because a second attempt costs a stage of the proceeding and some credibility.
Preparing affidavit evidence for a Controller hearing?
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