Rule 138 of the Patents Rules, 2003
Power to extend time specified or condone delay
Rule 138 lets the Controller extend a time prescribed by the Rules, or condone a delay, on a timely request in Form 4.
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 rule requires, step by step
Patent practice is a chain of dates, and people miss them. A director is hospitalised, an email goes to a spam folder, a foreign associate sends instructions late, a small company loses the one person who watched the docket. Rule 138 is the general relief valve. It allows the Controller, if he thinks fit and on such terms as he directs, to extend a time prescribed by the Rules for doing an act or taking a proceeding, or to condone a delay that has already occurred.
The shape of the rule changed with the Patents (Amendment) Rules, 2024. The earlier version allowed a single extension of one month, which in practice was too short to be useful for anything but a near miss. The current version allows extension or condonation for a period of up to six months, and permits a request to be made more than once within that six-month window. That is a real change in tone: the Office moved from a narrow indulgence to a workable second chance.
The request is made on Form 4 with the fee prescribed in the First Schedule, and the critical point is that it must be made within the six-month period. Once that outer limit passes there is no further relief under this rule. The request should state the reasons honestly and specifically. A generic line about inadvertence is weaker than an account of what actually happened, supported by whatever record exists, because the power is discretionary and the Controller is deciding whether to exercise it.
There are boundaries. Rule 138 addresses times prescribed by the Rules. Where a period is fixed by the Act itself, the Controller has no general authority to extend it, and courts have consistently held that a rule cannot enlarge a statutory period. Some rules also carry their own extension machinery, such as the time to put an application in order for grant, which has a specific extension route on Form 4 under Rule 24B, and where a specific provision applies it governs. The rule has also been amended more than once and has carried carve-outs in the past, so read the current text before assuming a particular deadline is covered.
The practical advice is unglamorous. Rule 138 is insurance, not a plan. Every extension costs a fee, needs a reason and consumes goodwill, and the six months runs from the deadline you already missed, not from the day you noticed.
Why this rule matters
Any applicant, patentee, opponent or agent who has missed or is about to miss a date prescribed by the Rules.
As soon as a lapse is spotted, and in any event within the outer period the rule permits.
A discretionary power in the Controller to extend time or condone delay, exercisable on a fee-bearing request in the prescribed form.
The act cannot be done, the application may be treated as abandoned or the right lost, and no later request can revive it.
How it works in practice
A Hyderabad diagnostics startup recovers a missed date
Suraksha Diagnostics Pvt Ltd, a four-person Hyderabad startup, runs its patent docket on a single spreadsheet kept by its head of R and D. In August she is hospitalised after an accident and is away for eleven weeks. During that time a date prescribed by the Rules passes unnoticed, and no one else in the company knows the file exists. When she returns and reviews the docket, she finds the lapse and calls the company's agent the same day. Because the miss is inside the six-month window, the agent files a request on Form 4 with the prescribed fee, sets out the dates plainly, and encloses the discharge summary and a short statement from the founder confirming that no one else had access to the docket. The Controller allows the request on terms. The company then does the thing that actually protects it: it moves the docket to a shared system with two named backups and a reminder sequence, because the next lapse might fall outside the window, and outside the window Rule 138 has nothing to offer.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Rule 138 covers times prescribed by the Rules, not periods fixed by the Act.
- Since the 2024 amendment the Controller may extend or condone for up to six months.
- A request may be made more than once inside that six-month period.
- The request goes on Form 4 with the fee in the First Schedule and must be filed before the six-month period expires.
- Relief is discretionary; a specific, documented explanation is far stronger than a general one.
- Where a rule has its own extension provision, that provision governs instead.
- Once the outer period lapses, nothing under this rule can revive the act.
Common mistakes and misunderstandings
- Believing the six months runs from the day the lapse was discovered. It runs from the date that was missed.
- Assuming every deadline in Indian patent practice can be extended. Periods set by the Act cannot be enlarged by the Controller.
- Filing a bare request with no reasons. The power is discretionary and an unexplained request invites refusal.
- Relying on the old one-month position, or on descriptions of the rule written before the 2024 amendment.
- Using Rule 138 as a routine planning tool rather than as emergency relief.
Connected provisions
This page explains a rule of the Patents Rules, 2003. A rule does not stand on its own; it works out a duty or a power that the Patents Act, 1970 has already created. The parent sections are listed separately so you can read the source of that authority.
Forms, deadlines and fees
Forms used under the Patents Rules are prescribed in the Second Schedule. They are revised when the Rules change, so download the current version from the Patent Office website rather than reusing a copy saved earlier.
- Extension or condonation under this rule is available for a period of up to six months from the date that was missed.
- The request on Form 4 must be filed before that six-month period expires, and more than one request may be made within it.
- Times fixed by the Act itself, as distinct from the Rules, are outside this relief.
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.
Amendment history
What changed in this provision, newest first. Read the footnotes in the official consolidated text for the full record.
- 2024The Patents (Amendment) Rules, 2024The rule was replaced with a single, wider power. The Controller may extend a time or condone a delay by up to 6 months, on a request in the prescribed form with the fee, and more than one request may be made within that outer limit.
- 2016The Patents (Amendment) Rules, 2016The rule was rewritten and the periods that cannot be extended were listed.
- 2005The Patents (Amendment) Rules, 2005The Controller was allowed to extend most periods under the Rules by a short further period, with named exceptions.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
Court decisions shape how this provision is applied, but a summary is useful only if it is right. Every case note on this site is read by a legal reviewer before it goes live, and none has been completed for this provision so far. This section will fill in as those reviews finish. How case notes are prepared.
Questions people ask about Rule 138
Can a missed patent deadline in India be extended?
Often, yes, where the deadline is one prescribed by the Patents Rules. Rule 138 allows the Controller to extend the time or condone the delay for a period of up to six months, on a request filed on Form 4 with the prescribed fee. The relief is discretionary, so the request must explain what went wrong. Two limits matter: the request has to be made before the six-month period runs out, and periods fixed by the Act itself, rather than by the Rules, cannot be extended under this power.
How long is the extension under Rule 138 now?
Up to six months. Before the Patents (Amendment) Rules, 2024 the rule allowed only one month, which is why older articles and checklists describe a much tighter position. The current rule also allows more than one request within the six-month window, so a party who needs a short extension and then finds it needs a little more is not shut out. What has not changed is the hard edge at the end of the window: after it, this rule offers nothing.
What is Form 4 used for?
Form 4 is the request for extension of time or condonation of delay. It is used for relief under Rule 138 and also where a specific rule provides its own extension route, such as the extension of the period for putting an application in order for grant under Rule 24B. The form identifies the application, the act that was to be done, the period concerned and the reasons for the request, and it is filed with the fee prescribed in the First Schedule. Supporting material explaining the cause of the delay should go with it.
Does Rule 138 apply to every time limit in the Rules?
Read the current text before assuming so. The rule has been amended more than once and has in the past excluded specified rules from its scope, and some rules contain their own tailored extension provisions that apply in preference to the general power. The safest approach when a date is at risk is to identify the exact rule or section that sets it, check whether that provision has its own relief, and only then fall back on Rule 138. Acting on this the same week you discover the problem matters more than any of it.
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