Rule 63A of the Patents Rules, 2003
Request made under section 26(1)
Rule 63A prescribes the form and manner for asking the Controller to treat a wrongfully obtained patent as the opponent's under section 26(1).
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.
Nothing here replaces the statute. The official wording of the provision, together with any Gazette notification that applies to it, governs. This page only explains that material in ordinary language.
What this rule requires, step by step
Sometimes a patent is granted to the wrong person. An employee leaves with a design, a collaborator files first, a supplier patents a customer's idea. Section 25(2) allows a person interested to oppose a granted patent on the ground of wrongful obtaining, meaning that the invention or part of it was taken from the opponent or from someone through whom the opponent claims. Section 26 then deals with what happens next, and Rule 63A supplies the procedural step.
Where the Controller finds in an opposition that the invention was obtained from the opponent, section 26 allows more than simple revocation. On a request by the opponent, the Controller may direct that the opponent be treated as the applicant, so that a patent may be granted to the true source of the invention for the whole or the relevant part of the invention, carrying the same date as the patent that was wrongly obtained. Where only part of the invention was obtained, the specification can be amended so that the wrongdoer keeps only what genuinely came from it.
Rule 63A ties this to a specific form, Form 12, which is the request for grant of a patent under section 26(1) and also serves section 52(2), the parallel provision that applies where a patent has been revoked on the ground of fraud. The request must be made within the period the rule prescribes, running from the Controller's order, and that period is short, so confirm the current text of the rule before relying on any number you read in a commentary.
The practical value of this route is that it preserves the date. If the wrongly obtained patent were simply revoked, the true inventor would have to file afresh, and the earlier disclosure and publication would usually destroy novelty. Section 26 avoids that trap. It is one of the strongest reasons for a company that suspects its invention has been filed by someone else to use post-grant opposition rather than waiting, because the remedy of stepping into the patent is tied to the opposition procedure.
Why this rule matters
Employers, collaborators, institutions and inventors whose invention has been patented by someone else.
Immediately after the Controller finds wrongful obtaining in a post-grant opposition.
A right to ask that the patent be treated as the opponent's, with the benefit of the original date, using the prescribed form.
If the request is not made in the prescribed form and time, the opponent may be left with revocation only, and a fresh application would face the earlier publication as prior art.
How it works in practice
A start-up recovers its own invention
Kavya Menon and two colleagues develop a battery balancing circuit at their Bengaluru start-up. A contract engineer who worked on the project for six months leaves and, some months later, files a patent application on the same circuit in his own name. The start-up learns of it only when the grant is published. It files a post-grant opposition as a person interested, pleading wrongful obtaining and supporting it with dated design files, version histories from its code repository, internal review notes and affidavits from the two colleagues. The Controller accepts that the invention was obtained from the start-up. Because a fresh application would now be met by the engineer's own published specification as prior art, the company does not want mere revocation. Its agent files the prescribed request in Form 12 within the period set by Rule 63A, asking that the patent be treated as the start-up's. The Controller directs accordingly, and the company holds the patent with the original date intact.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Section 26 applies where an opposition succeeds on the ground of wrongful obtaining.
- The opponent may ask to be treated as the applicant instead of the patent simply disappearing.
- The request is made in Form 12, which also covers requests under section 52(2).
- Rule 63A sets a short period running from the Controller's order; check the current rule for the exact period.
- The great advantage is that the original date is preserved.
- Where only part of the invention was obtained, the specification may be amended rather than the whole patent moved.
Common mistakes and misunderstandings
- Pleading wrongful obtaining without documentary proof. Dated design records, emails, repository histories and contracts do the work here.
- Asking only for revocation. Revocation alone can leave the true inventor unable to refile because the wrongful specification is already published.
- Missing the short window for the request after the Controller's order, when the whole benefit lies in acting promptly.
- Assuming an employment contract settles ownership automatically. You still have to prove who devised the invention and when.
- Waiting for grant when a pre-grant representation or a careful ownership demand might have resolved matters earlier.
Connected provisions
Rules are made under the Act, not alongside it. That is why the connected sections appear in a block of their own. Reading the section tells you why the procedure exists, and reading the rule tells you the steps, forms and periods that put it into effect.
Forms, deadlines and fees
- Form 12 (check the current Second Schedule)
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.
- A request under section 26(1) must be made in Form 12 within the period prescribed by Rule 63A, running from the Controller's order; verify the exact period in the current Rules.
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.
- 2005The Patents (Amendment) Rules, 2005The rule was inserted, prescribing the form and manner of a request under section 26(1) where a patent was obtained wrongfully from the opponent.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
You will not find case summaries under this heading today. Each one must pass a legal review before it appears, and that work has not been completed for this provision. If you are researching decided cases, use a law report or a court database in the meantime. How case notes are prepared.
Questions people ask about Rule 63A
Someone else patented my invention. Can I get the patent transferred to me?
If you can prove the invention was obtained from you, the law offers a route. In a post-grant opposition on the ground of wrongful obtaining, if the Controller accepts your case, section 26 allows you to request that you be treated as the applicant, so a patent may be granted to you for the whole or the relevant part, carrying the original date. The request is made in Form 12 within the period Rule 63A prescribes. Evidence of who devised the invention and when is essential.
Why not simply have the wrong patent revoked?
Because revocation on its own can leave you worse off. Once the wrongly obtained specification has been published, it becomes prior art. A fresh application filed after that publication would usually fail for lack of novelty, so you could destroy the wrong patent and still end up with nothing. Section 26 solves this by allowing the patent to be treated as yours with the original date, which is why the request under Rule 63A is worth making without delay.
What is Form 12 used for?
Form 12 is the request for grant of a patent under section 26(1) and section 52(2). Section 26(1) covers the situation where an opposition succeeds on the ground that the invention was obtained from the opponent. Section 52(2) covers the parallel situation where a patent has been revoked on the ground of fraud and the true and first inventor seeks a patent in its place. In both cases the point is to move the patent to the rightful person without losing the original date.
Has someone patented your invention?
MYCrave Consultancy builds wrongful obtaining cases and files section 26 requests so you keep the original filing date.
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