I never filed Form 27. What is the risk of not filing a working statement?
The working statement is a legal duty on every patentee and every licensee, not an optional formality. Failing to furnish the information is an offence under Section 122, and the gap can be used against the patentee in compulsory licence proceedings. A late statement can often still be filed, with a request to condone the delay, but it does not undo the earlier default.
What the law actually says
Section 146(2) requires patentees and licensees to state how far the patented invention has been worked on a commercial scale in India. Working means real commercial use, whether by manufacturing here, by importing the product, or by licensing someone else to do it. Rule 131 is the machinery: the statement is furnished in Form 27, and the reporting cycle has changed more than once. Since the Patents (Amendment) Rules, 2024 the statement is furnished once for every block of three financial years, with the first block starting from the financial year that begins immediately after the financial year in which the patent was granted, and filed within six months of the end of that block. Because the cycle moved in 2020 and again in 2024, the current Rule has to be read before any date is diarised.
The duty is personal to each holder of rights. Every patentee must file, and so must every licensee, including an exclusive licensee. Joint patentees may file a single joint statement, and one form may cover a group of related patents where the working figures cannot sensibly be separated. A licensee cannot assume the patentee's filing covers it.
Section 122 supplies the sanction. Refusing or failing to furnish information required under Section 146 is an offence, and furnishing information that the person knows or has reason to believe is false is treated more seriously. The penalties were revised by the Jan Vishwas (Amendment of Provisions) Act, 2023, so the current text must be checked rather than assumed. Where a company is in default, Section 124 addresses the liability of persons in charge of its business.
The commercial consequence is often larger than the penalty. Working statements are published, which is the point of them. Under Section 84 an interested person may apply for a compulsory licence after three years from grant, on grounds including that the reasonable requirements of the public have not been satisfied or that the invention is not worked in India, and Section 85 allows revocation for non-working. An absent filing history is not itself proof of non-working, but it leaves the patentee with nothing on the public record to point to.
What follows from it
- Failure to furnish the information is an offence under Section 122, and where a company is in default Section 124 extends liability to persons responsible for its business.
- Furnishing a statement that is false to the filer's knowledge is treated more seriously than filing nothing at all.
- In a compulsory licence application under Section 84, the patentee has no filed record of working to rely on and has to reconstruct it under time pressure.
- Sustained non-working can support revocation under Section 85 after the period the Act allows.
- Each licensee carries its own separate duty, so a licensee's silence creates exposure for that licensee as well as a gap in the overall picture.
- The missing filings are visible on the public file and are picked up in due diligence, in opposition and by anyone assessing the patent's commercial position.
What options exist
File the overdue statement with a request to condone the delay Usually available
Rule 131 as amended expressly links to Rule 138, so a request in Form 4 with the fee prescribed in the First Schedule may be made asking the Controller to extend the time or condone the delay. Rule 138 currently allows up to six months and requires the request to be made inside that window. Whether it is granted is discretionary. Where the six months has not run out, this is the straightforward route and it should be taken promptly.
Furnish the information late in any event Limited
Where the Rule 138 window has already closed, there is no formal condonation route left for that period. The underlying duty under Section 146 continues, and the information can still be supplied. Filing late does not erase the default and does not remove the exposure under Section 122. What it does is stop the gap growing and show that the patentee corrected the position once it knew.
Respond properly to a notice under Section 146(1) Usually available
Separately from the periodic statement, the Controller may at any time while the patent is in force serve a written notice asking for information about commercial working. The reply is due within two months, or within any further time the Controller allows. Ignoring that notice is a distinct default with its own consequences under Section 122, and it should never be left unanswered.
Put a portfolio-wide process in place Usually available
Missing statements are almost always a process failure rather than a decision. Mapping every patent to its reporting block, identifying every licensee with a duty of its own, and assigning one owner for the cycle is what stops the problem recurring. It also produces the working data in a usable form, which is what the patentee needs if a compulsory licence application ever arrives.
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
- Map each patent's reporting block from its year of grant, and re-check the cycle against the current Rule each time it comes round.
- Write the filing obligation into every licence, and require the licensee to send you a copy of what it filed.
- Collect working data as it arises, including quantities, value, imports and licensing revenue, so the statement is a record rather than a reconstruction.
- Decide in advance how a patent that is not being worked will be described. The form provides for that answer; staying silent is not one of the options the Act offers.
- Give one named person responsibility for the whole portfolio's working statement cycle, with a documented handover if they leave.
A licensed dyeing process in Tiruppur
Nallamuthu Textiles Pvt Ltd held a patent on a low-water dyeing process and licensed it to two units in the same cluster. Everyone assumed the patentee's filings covered the whole arrangement, so neither licensee filed anything and the patentee's own statements lapsed after the first cycle. Some years after grant, an interested person applied for a compulsory licence, arguing that the process was not available to the industry on reasonable terms. At that point the company had to assemble working figures from invoices and licence royalty statements at short notice. It filed the overdue statements, with a request in Form 4 under Rule 138 for the periods still inside the window, and furnished what it could for the rest. It also rewrote its licence template to make the filing a contractual obligation on the licensee. This is a simplified illustration of how the gap tends to surface.
Simplified illustration only. Actual outcomes depend on the facts.
Questions people ask
What is the current Form 27 reporting cycle?
Since the 2024 amendment, once for every block of three financial years, filed within six months from the end of the block, with the first block beginning in the financial year after the one in which the patent was granted. Before that the rule ran annually on financial years, and before 2020 it ran on calendar years. Because it has moved twice, the current Rule 131 should be read before any reminder is set, especially for patents granted around the amendment dates.
Does a licensee have to file separately from the patentee?
Yes. Section 146(2) places the duty on every patentee and every licensee, and an exclusive licensee is expressly included. Each holds a different part of the commercial picture and each is answerable for its own part. A licensee that assumes the patentee's filing covers it is exposed in its own right. This is why the obligation is worth writing into the licence agreement, together with a requirement that the licensee send the patentee a copy of what it filed.
What do I file if the patent is not being worked at all?
You still file, and the statement says so. Non-working is not in itself an offence. It is a fact that the Act's compulsory licence and revocation machinery is built to respond to, and Section 83 sets out the principle that patents should be worked in India on a commercial scale. What the Act does penalise is failing to furnish the information. A patentee that reports honest non-working is in a better position than one that reports nothing.
Can a late working statement be condoned?
Rule 131 as amended points to Rule 138, so a request in Form 4 with the prescribed fee may be made asking the Controller to extend the time or condone the delay. Rule 138 currently allows up to six months and the request must be made inside that period. The power is discretionary, and a specific explanation supported by records is more persuasive than a general reference to oversight. Once the six months passes, that route is closed for the period concerned.
Can my patent be revoked just for not filing?
Not for the failure to file as such. Section 122 deals with refusing or failing to furnish information required under Section 146, and it is a penal provision rather than a revocation provision. Revocation for non-working comes under Section 85, and it addresses the underlying commercial position after the period the Act allows, not the paperwork. The two are separate, although a missing filing history makes the non-working allegation harder for a patentee to answer.
Behind on your Form 27 working statements?
MYCrave Consultancy & Services can map the reporting cycle across your whole portfolio.