I missed the deadline to file the request for examination. What happens now?
If the request for examination is not filed within the period the Rules allow, the application is treated as withdrawn by the applicant. No order is passed and no notice is sent. In most cases this cannot be undone. A request to condone the delay is sometimes attempted, but it depends on the current Rules and on the Controller's discretion.
What the law actually says
An Indian patent application is not examined on its own. Somebody has to ask. Section 11B makes that request a condition of the application going forward, and Rule 24B fixes when it must be made. Under the Rules as amended in 2024 the request is due within thirty-one months, counted from the earliest priority date or from the filing date, whichever comes first. Applications filed before that amendment took effect continue under the forty-eight month period that applied to them. Which period governs a particular file has to be worked out from its own dates.
The consequence of missing it is unusual, and this is the part readers often misunderstand. The application is not refused and it is not abandoned for failing to answer objections. It is treated as withdrawn by the applicant, as though the applicant had chosen to pull it. That happens by force of the section. No hearing is held first, no order is passed, and the Patent Office does not write to say it has happened.
Rule 138 gives the Controller a general power to extend a time prescribed by the Rules, or to condone a delay, for a period of up to six months, on a request in Form 4 with the fee prescribed in the First Schedule. Whether that power reaches a missed request for examination has been argued both ways, and earlier versions of Rule 138 expressly kept certain periods outside its reach. It should be treated as a possibility that a Controller may or may not entertain, not as a route the applicant is entitled to use.
There is a second problem that no relief addresses. The specification was almost certainly published at eighteen months under Section 11A. That published document is public, and it counts as prior art. An applicant who files afresh for the same invention will usually meet their own earlier publication in the examiner's search.
What follows from it
- The application is treated as withdrawn. It cannot be examined, and it cannot proceed to grant.
- The specification published at eighteen months stays public and becomes prior art. It cannot be unpublished, so refiling the same invention will usually fail on novelty.
- The priority date attached to that application is lost for the invention in India. Any later Indian filing starts from its own date.
- No divisional application can be filed, because Section 16 needs a parent application that is still pending.
- The status change is visible on the public file, and due diligence teams find it.
- Foreign family members keep their own dates and are not directly affected, but there is no longer an Indian right in that invention to license or enforce.
What options exist
Confirm the deadline was genuinely missed Usually available
The thirty-one months run from the earliest priority date, not from the Indian filing date, and the older forty-eight month period still governs some pending files. Miscounting is common. Before anything is conceded, the actual priority chain and the commencement position under the 2024 Rules have to be read against the file. A patent professional must do this on the real dates.
Request under Rule 138 to condone the delay Rarely available
Rule 138 allows the Controller to extend a time prescribed by the Rules or condone a delay by up to six months, on a request in Form 4 with the prescribed fee, and more than one request may be made inside that window. The request must reach the Office before the six months expire. Whether the power extends to the examination request period is unsettled, and the decision is discretionary. A generic explanation is weaker than a documented account of what actually happened.
Writ petition before the High Court Rarely available
Where deemed withdrawal followed from something the applicant could not control, such as an agent who never passed on instructions or a documented failure in communication, some applicants have gone to the High Court. Outcomes turn on the particular facts and on how quickly the applicant moved after discovering the position. It is slow, costly, and not something a docket can rely on.
Fresh application for genuinely later work Limited
A technical contribution developed after the original specification, and not described in it, can be filed as a new application on its own merits. This is not a way of recovering the old invention. The published specification of the withdrawn application will be cited against anything that overlaps with it.
The labels above describe how often a route is realistically available in general practice — not a prediction about your matter. Relief that depends on the Controller's discretion is never an entitlement.
How to stop it happening again
- Record the examination request date on the day of filing, calculated from the earliest priority date rather than the Indian filing date.
- Establish which period governs each pending file, since the 2024 change left two different periods running side by side.
- File Form 18 early. Nothing is gained by holding it back to the final month, and expedited examination under Rule 24C may be open to some applicants.
- Keep the address for service on the Patent Office record current, so correspondence does not go to a closed office or a dead inbox.
- Give one named person the docket, and have a second person check it each quarter.
A missed clock at a Vellore ceramics unit
Sundara Clays Pvt Ltd, a small ceramics maker near Vellore, filed an application for a kiln lining. The consultant who handled it left the following year, and the docket moved to a spreadsheet nobody owned. The specification published in the ordinary course. The thirty-one month date came and went. Nobody noticed until a buyer's due diligence team pulled the file and found the status marked as withdrawn. No notice had arrived, because none is issued. A new agent looked at whether a request under Rule 138 was still open and found the six-month window had closed long before. Refiling was considered and set aside, because the company's own published specification described the lining fully. What remained was a genuinely different composition developed since, and that was filed as a new application on its own merits. This is a simplified illustration only. Every file turns on its own dates and its own history.
Simplified illustration only. Actual outcomes depend on the facts.
Questions people ask
Will the Patent Office tell me my application has been withdrawn?
Generally no. The withdrawal follows from the section itself once the period passes, so there is nothing for the Office to decide and nothing it has to communicate. Applicants usually discover it by checking the application status on the Patent Office's public search, or when someone else checks it for them. That is why the position is often found years late, during due diligence or when a competitor is spotted. Checking status directly, rather than waiting for post, is the only reliable habit.
Can I simply file the same application again?
You can file, but filing and obtaining are different things. Once the specification was published, its contents entered the public domain as prior art. An examiner searching the new application will find the old published specification and cite it. Unless the new application claims something that the earlier document did not disclose or make obvious, novelty and inventive step will be hard to establish. Whether anything survives depends on a careful comparison of the two documents, which a patent professional has to carry out.
Does Rule 138 definitely cover a missed request for examination?
No, and it would be wrong to promise that it does. Rule 138 in its current form allows extension or condonation of up to six months for a time prescribed by the Rules. Earlier versions of the rule expressly excluded certain periods, and there has been argument about how far the current version reaches. Some requests have been entertained and some have not. It is a discretionary power, exercised on the facts placed before the Controller, not an entitlement that can be planned around.
How exactly is the thirty-one month period counted?
It runs from the earliest priority date claimed, or from the date of filing where no priority is claimed, whichever is earlier. For a national phase application entering India through the PCT, the earliest priority date of the international application is the starting point. Applications filed before the 2024 amendment commenced remain under the forty-eight month period that applied to them. Because the transitional position is still working through pending files, the calculation should be verified against Rule 24B as it currently stands.
Could someone else have filed the request for me?
Section 11B allows the request to be made by the applicant or by any other person interested. A licensee, a co-owner or even a competitor who wanted the file resolved could have filed it inside the period. That route only helps while the period is open. Once it has passed, nobody can file the request, and a third party cannot revive an application that the Act treats as withdrawn by the applicant.
Unsure whether your Indian application is still alive?
MYCrave Consultancy & Services can pull the file history and tell you exactly where it stands.