Rule 85 of the Patents Rules, 2003
Opposition to restoration under section 61
Lets an interested person oppose the restoration of a lapsed patent after the restoration application is published.
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
Restoration brings a dead patent back to life, and that has real consequences for anyone who moved into the space while it was lapsed. Section 61 therefore allows opposition, and Rule 85 supplies the machinery. Once the Controller finds a prima facie case and publishes the restoration application, an interested person may file a notice of opposition on Form 14 within the period the Rules fix.
The grounds are narrow and are set by section 61. The core ground is that the failure to pay the renewal fee was not unintentional, or that there was undue delay in applying for restoration. An opponent is not re-arguing whether the invention deserved a patent in the first place; validity attacks belong to revocation proceedings under section 64. Opposition here is about conduct: did the patentee genuinely slip, or did the patentee let the patent go and change its mind when the market changed?
Because the question is factual, the case is usually built on documents. An opponent may point to public statements that the patentee had abandoned the technology, to the patentee allowing other patents in the same family to lapse at the same time, to a long unexplained gap between the lapse and the application, or to inconsistencies inside the patentee's own affidavit.
The proceeding follows the familiar shape of Patent Office contested matters. The notice is sent to the Controller with a copy to the applicant, statements and evidence are exchanged in the manner the Rules provide for oppositions, and both sides get a hearing before the Controller decides. The Controller may allow restoration, refuse it, or allow it on terms that protect third parties.
Why this rule matters
Manufacturers, importers and researchers who started using a lapsed invention, and patentees seeking restoration who must be ready to answer them.
In the window that opens when a restoration application is published in the Official Journal.
A right in an interested person to be heard against restoration, and a corresponding burden on the patentee to justify the lapse.
If the window is missed, restoration may go through unopposed and the objector loses the chance to keep the invention in the public domain.
How it works in practice
A generic manufacturer opposes a revival
Aravali Pumps Pvt Ltd of Jaipur begins making a low-head irrigation pump after checking the register and finding that the relevant patent, held by a Delhi company, has lapsed for non-payment. Aravali invests in tooling and signs supply contracts with two dealer networks. Fourteen months later the Journal publishes a restoration application for that patent. Aravali files Form 14 opposing restoration. Its case is built on documents: the patentee's own annual report describing the pump business as discontinued, the fact that two related patents in the same family were also allowed to lapse on the same date, and a fifteen-month gap between the lapse and the restoration application with no explanation of when the lapse was discovered. The patentee replies with evidence about a change of finance staff. Both sides file evidence and are heard. Whatever the outcome on restoration, Aravali also preserves its separate protection under section 62 for the use it had already begun, which is why acting early and documenting the start of use matters.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Opposition to restoration is filed on Form 14 after the restoration application is published.
- The grounds are limited to those in section 61, mainly that the failure to pay was not unintentional or that there was undue delay.
- Validity of the patent is not the issue here; that belongs to revocation under section 64.
- The case is usually proved by documents showing the patentee treated the patent as abandoned.
- Statements and evidence are exchanged and both sides are heard before the Controller decides.
Common mistakes and misunderstandings
- Using a restoration opposition to argue that the invention is obvious or already known. Those grounds belong elsewhere.
- Waiting to see whether restoration is granted before acting. The opportunity to object closes soon after publication.
- Assuming that opposing restoration is the only protection. A person who genuinely began using the invention during the lapse also has rights under section 62.
Connected provisions
Rules and sections are cited differently and amended differently. On a rule page the connected sections are therefore kept in a separate list, so that a reader quoting this material can attribute each requirement to the correct instrument.
Forms, deadlines and fees
Forms are not set out in the Act. They are prescribed in the Second Schedule to the Patents Rules and are revised from time to time, so obtain the current version from the official website before filing.
- A notice of opposition must be filed within the period fixed by the Rules after the restoration application is published, currently two months from publication. Confirm the exact period against the Rules in force.
- Evidence and reply statements follow the timetable applicable to opposition proceedings, so diary each step as soon as the notice is filed.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
We do not publish fee amounts. The First Schedule sets them, and they differ by category of applicant, such as a natural person, a startup, a small entity or another applicant, and by the mode of filing. Check the Schedule currently in force before you calculate anything. How Indian patent fees work.
Related judgments
Case summaries are published only after a qualified reviewer has checked the judgment, the citation and the way the holding is described. Nothing has cleared that review for this provision yet, so nothing is listed here. We would rather show no case note than one that misstates what a court decided. How case notes are prepared.
Questions people ask about Rule 85
Who can oppose the restoration of a lapsed patent?
Any person interested may oppose. In practice that means someone with a real commercial stake, such as a manufacturer who started making the product during the lapse, an importer, a supplier to that trade, or a research organisation working in the same field. A person with no connection to the technology will struggle to show interest. The opposition is filed on Form 14 after the restoration application is published in the Official Journal.
What grounds can I raise against restoration?
Section 61 keeps the grounds narrow. The main ones are that the failure to pay the renewal fee was not unintentional, and that there has been undue delay in making the restoration application. You are challenging the patentee's conduct, not the merits of the invention. If you believe the patent should never have been granted, that is a revocation case under section 64 or a counterclaim in infringement proceedings, and it can be pursued separately.
If restoration is allowed, can the patentee sue me for what I did during the lapse?
Generally not for what you had already begun. Section 62 protects a person who used the invention, or made definite and serious preparations to use it, while the patent was not in force. That protection is personal to the user and its scope is limited to what was actually being done or prepared. Keep dated evidence of when you started, what you made and what you invested, because that record is what the protection rests on.
Facing the revival of a patent you rely on?
MYCrave Consultancy builds and defends restoration oppositions before the Controller under section 61.
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