Hearing Before the Patent Controller in India

A hearing before the Controller of Patents is the point at which an Indian patent application is actually decided. The examination report, the applicant’s reply and the exchange of correspondence all lead to it, and in the great majority of contested applications the refusal or grant that follows is the only order on the merits that the applicant will ever receive from the Patent Office. Because that order can end a twenty-year monopoly before it begins, the manner in which the hearing is noticed, conducted and recorded carries a weight that is out of proportion to its brevity. The Delhi High Court in particular has spent the last five years setting aside refusal orders that were passed without a proper hearing, without notice of the real objection, or without reasons, and the resulting body of decisions now forms a working code of procedural fairness for the Patent Office.

The legal sources of that code are scattered. The right to be heard is found in Section 14 and Section 80 of the Patents Act, 1970, in the provisions on opposition under Section 25, and in Rules 129 and 129A of the Patents Rules, 2003. The Controller’s evidentiary and review powers are found in Chapter XV, principally Sections 77 and 79. The remedy against an adverse order lies in an appeal to the High Court under Section 117A. Read together with the principles of natural justice and with Articles 41 and 62 of the TRIPS Agreement, these provisions describe what an applicant is entitled to expect and what a Controller is bound to do.

This article sets out the statutory framework for hearings, the mechanics of notice and adjournment under the Rules, the scope of the Controller’s powers, the opposition hearing, and the decisions in which the Delhi and Bombay High Courts have defined the content of natural justice in this setting. It closes with a short comparison with the European Patent Convention and with observations for practitioners preparing for a hearing.

The Statutory Framework – Sections 14, 15 and 80 of the Patents Act, 1970

The scheme begins with Section 14. Where the examiner’s report received by the Controller is adverse to the applicant, or requires an amendment of the application, the specification or other documents to ensure compliance with the Act and the Rules, the Controller, before proceeding to dispose of the application, must communicate the gist of the objections to the applicant as expeditiously as possible and must, if so required by the applicant within the prescribed period, give the applicant an opportunity of being heard. Section 14 therefore imposes two duties in sequence: a duty to disclose the case against the applicant, and a duty to hear the applicant on it if the applicant asks.

Section 15 then confers the power to refuse the application, or to require it to be amended, where the Controller is satisfied that the application or any specification or other document filed with it does not comply with the Act or the Rules. The power is wide, but it is not freestanding. In a 2023 judgment bearing neutral citation 2023/DHC/000268, arising from a writ petition in pre-grant opposition proceedings, the Delhi High Court noted that Section 14 expressly requires the Controller to hear the applicant before acting while Section 15 does not say so in terms, and it read the two provisions together with Section 80 to hold that the refusal power is exercisable only within the procedural safeguards the Act provides.

Section 80 supplies the general safeguard. Without prejudice to any provision requiring the Controller to hear a party, the Controller must give an applicant for a patent, or for amendment of a specification, an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Controller by or under the Act, if the applicant so requires within the prescribed time. The provision makes the opportunity of hearing a condition of valid exercise of discretion and not a courtesy. Rule 129 of the Patents Rules, 2003 gives it operational form: before exercising any discretionary power under the Act or the Rules which is likely to affect an applicant or a party to a proceeding adversely, the Controller shall give that applicant or party a hearing, after giving ten days’ notice of the hearing ordinarily.

The Delhi High Court has applied these provisions together to hold that the Controller owes the applicant a hearing before exercising any discretionary power adversely, and that an applicant’s silence or inaction is not to be treated as a waiver unless it reflects a conscious decision. In Ferid Allani v. Union of India, the Court held that abandonment of an application requires a conscious act on the part of the applicant manifesting an intention to abandon, and referred to Section 80 and Rule 129 as imposing a duty on the Controller to hear an applicant before exercising any discretionary power likely to affect the applicant’s claim adversely. Later decisions, including one of 6 May 2024 on an application deemed abandoned, have applied the same reasoning.

Notice, Adjournment and Appearance – Rules 129 and 129A and the Public Notices of the Controller General

The procedural detail lies in the Rules. Rule 129 fixes the ordinary notice at ten days. Rule 129A, inserted to regulate adjournments, allows an applicant or a party to request an adjournment of the hearing for reasonable cause, along with the prescribed fee, at least three days before the date of the hearing, and permits the Controller, if the Controller thinks fit, to adjourn the hearing on such terms as may be directed. The proviso limits the indulgence: no party shall be given more than two adjournments, and each adjournment shall not be for more than thirty days.

The Office of the Controller General has supplemented these provisions with public notices. A notice issued in December 2022 reduced the gap between the hearing notice and the hearing to ten days, in line with the text of Rule 129, restricted adjournments to two, and indicated that each adjournment should ordinarily be limited to ten days. It also stated that requests for adjournment which do not mention the reasonable cause required by Rule 129A would not be entertained. Representations from the profession, including those made by the Indian chapter of FICPI, pointed out that Rule 129A permits adjournments of up to thirty days and that a ten-day notice period is the minimum the Rules allow and not the norm for complex files. A revised notice dated 16 January 2023 retained the requirement of reasonable cause but withdrew the ten-day cap on each adjournment, and affirmed that Rules 129 and 129A read together make ten days the inner limit and thirty days the outer limit. The notice added that the Office would offer shorter periods for minor procedural matters and longer periods for matters involving the analysis of prior art and claim construction.

Two practical points follow. First, a request for adjournment must state a real reason and be filed at least three days before the hearing; a bare request made on the eve of the hearing will not be considered. Second, only authorised representatives may appear for a party before the Controller, a point addressed in the same series of public notices, so that applicants who rely on foreign counsel or in-house personnel must arrange for an Indian patent agent or advocate to appear.

Powers of the Controller at a Hearing – Sections 77 and 79

The Controller is not a mere administrative officer. Section 77(1) vests the Controller, in any proceeding before him under the Act, with the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, in respect of summoning and enforcing the attendance of any person and examining the person on oath, requiring the discovery and production of documents, receiving evidence on affidavits, and issuing commissions for the examination of witnesses or documents. The same section extends to awarding costs, which are executable as a decree of a civil court under Section 77(2), to reviewing the Controller’s own decision on an application made within the prescribed time, and to setting aside an order passed ex parte on an application made within the prescribed time and in the prescribed manner.

Section 79 governs the manner of proof. Evidence in any proceeding before the Controller is to be given by affidavit in the absence of a direction to the contrary, but where the Controller thinks it right to do so, the Controller may take oral evidence in lieu of, or in addition to, evidence by affidavit, and may allow any party to be cross-examined on the contents of an affidavit. In practice, most examination hearings proceed on written submissions and arguments of the representative, while opposition proceedings, which are evidence-heavy, make fuller use of affidavits and, in rarer cases, cross-examination.

The Bombay High Court has relied on these provisions to characterise the Controller’s office. In Vishal Prafulsingh Solanke v. Controller of Patents and Designs, a Division Bench held in 2026 that the Controller possesses the trappings of a civil court by virtue of Section 77 and exercises extensive quasi-judicial powers under Sections 77, 79 and 80, including summoning witnesses, requiring production of documents, and receiving affidavit and oral evidence. The Bench also held that a refusal order determining the applicant’s rights is an order within Section 117A, appealable to the High Court, and that the single judge hearing such an appeal exercises appellate jurisdiction, with the result that a further intra-court appeal is barred by Section 100A of the Code of Civil Procedure. The consequence is that the single-judge decision on a Section 117A appeal will, in the Bombay High Court at least, be final, which raises the stakes of getting the record right at the Patent Office.

The Opposition Hearing – Section 25 and the Right of the Opponent

The right to be heard extends to opponents. Under Section 25(1), a person who files a pre-grant representation is entitled, if so requested, to be heard by the Controller, and the Controller disposes of the representation in the manner and within the period prescribed. In post-grant opposition, Section 25(4) provides that, where a notice of opposition is duly given, the Controller shall notify the applicant and shall give the applicant and the opponent an opportunity to be heard before deciding the case. The Rules provide that the Controller, after hearing the party or parties desirous of being heard, or without a hearing if neither party wishes to be heard, and after taking into consideration the recommendation of the Opposition Board, shall decide the opposition and notify the decision to the parties giving reasons.

The interaction between the opposition hearing and the examination hearing was settled by the Delhi High Court in Fresenius Kabi Ipsum Srl v. Assistant Controller of Patents and Designs, reported in September 2026. The applicant’s process patent application for sugammadex had been refused after the Controller heard the applicant and the pre-grant opponent in the Section 25(1) proceedings, but without a separate hearing under Section 14. The Court held that a Section 14 hearing is a mandatory statutory right that exists independently of any hearing in opposition, and that a Section 25(1) hearing, however extensive, cannot substitute for it. It relied on the reasoning of the Bombay High Court in the case of AIC246 AG and on the Manual of Patent Office Practice and Procedure, which provides that no patent is to be refused without a Section 14 hearing and that, after an opposition hearing, the Controller must still pass a composite speaking order under Section 15. The decision confirms that the two proceedings run on separate statutory tracks and that the Controller who combines them must satisfy the safeguards of both.

Natural Justice at the Patent Office – Reasoned Orders, New Objections and Non-Attendance

The High Court’s decisions on natural justice fall into three groups: reasoned orders, notice of objections, and the effect of non-attendance.

On reasoned orders, the leading authority is Agriboard International LLC v. Deputy Controller of Patents and Designs, C.A.(COMM.IPD-PAT) 4/2022, 2022 SCC OnLine Del 940, decided by the Delhi High Court on 31 March 2022. The appellant, a United States company, had filed an application on 13 March 2020 claiming priority from a United States application of 14 March 2019, and the Deputy Controller refused it on 16 June 2021 for lack of inventive step by a short order that reproduced the objections in the first examination report on the cited prior art without engaging with the applicant’s reply. The Court held that application of mind and the recording of a reasoned decision are basic elements of natural justice and that scrupulous adherence to them is required when rejecting a patent application. It set aside the order and remanded the matter for fresh decision within four months by a reasoned and speaking order, and it laid down that, in refusing an application for lack of inventive step under Section 2(1)(ja), the Controller must consider the invention disclosed in the prior art, the invention disclosed in the application, and the manner in which the invention would be obvious to a person skilled in the art.

The principle has been applied repeatedly. In Treibacher Industrie AG v. Assistant Controller of Patents, C.A.(COMM.IPD-PAT) 92/2024, the Delhi High Court set aside a refusal that rested on the grounds that amended claims travelled beyond the scope of the claims as filed and that the invention lacked inventive step, because the order did not consider the written statement the appellant had filed at the hearing. The Court remanded the matter for fresh examination by another Controller within six months. In Proprietect L.P. v. Controller of Patents, the Court set aside a refusal order which introduced new objections, ignored the amended claims and failed to give reasons on novelty, inventive step and clarity, and directed that a fresh hearing notice be issued and the application decided, preferably within six months.

On notice of objections, the Court has held that a Controller cannot refuse an application on a ground that was not communicated to the applicant. In Man Truck Bus SE v. Assistant Controller of Patents and Designs, 2024 SCC OnLine Del 874, decided on 9 February 2024, the Court set aside an unreasoned refusal that relied on a new objection raised at the hearing, and the decisions in Proprietect and later cases repeat that raising new grounds at the hearing does not afford the applicant a sufficient opportunity to contest them. The hearing notice under Section 14 is, in the Court’s description, the Controller’s statement of what still stands against the application after the reply to the examination report, and the refusal must remain within that statement unless the applicant is given a fresh opportunity.

On non-attendance, the Delhi High Court held in Star Scientific Limited v. Controller of Patents and Designs, decided on 30 July 2024, that an applicant’s failure to attend the hearing does not relieve the Controller of the duty to pass a reasoned order. The applicant’s representative had not attended the hearing of 8 December 2023, and the Controller refused the application on 18 December 2023 on the footing that all the objections in the hearing notice remained unresolved. The Court held that the refusal could not rest on non-attendance, particularly where a detailed reply to the first examination report had been filed, and that the Controller was bound to pass a speaking order on the merits under Section 15. It followed Telefonaktiebolaget LM Ericsson (Publ) v. Union of India and Merck Serono S.A. v. Union of India, in which the Court had held that a detailed response to the examination reports enjoins the Controller to pass a reasoned order on the merits and that the Controller cannot treat the application as abandoned under Section 21(1) in order to avoid doing so. The Court also observed that non-attendance for reasons such as financial difficulty cannot be equated with a conscious act of abandonment, applying the principle in Ferid Allani.

Review and Appeal – Section 77(1)(f) and Section 117A

An applicant dissatisfied with a refusal has two remedies. The first is a review before the Controller under Section 77(1)(f), read with Rule 130 of the Patents Rules, 2003, which must be filed within the time prescribed and is confined to grounds analogous to those under Order 47 of the Code of Civil Procedure, such as an error apparent on the face of the record, non-receipt of a hearing notice, or failure to consider amended claims filed with the hearing submissions. The Madras High Court held in Caleb Suresh Motupalli v. Controller of Patents that no statutory appeal lies against an order passed by the Controller in review under Section 77(1)(f), since Section 117A(2) does not list it among the appealable orders. A review is therefore a remedy to be used with care, because it does not extend the time for an appeal from the original order.

The second remedy is an appeal to the High Court under Section 117A, which lists the orders of the Controller that are appealable. The appeals in Agriboard, Treibacher, Star Scientific and Fresenius were all brought under this provision. Writ jurisdiction under Article 226 remains available in exceptional cases, but the High Courts have been reluctant to entertain writs where the statutory appeal is available, and an applicant should ordinarily elect the Section 117A route.

The International Context – TRIPS Articles 41 and 62 and the European Patent Convention

The Indian position accords with international norms. Article 62(4) of the TRIPS Agreement provides that procedures for the grant or registration of intellectual property rights, and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles in paragraphs 2 and 3 of Article 41. Article 41(3) provides that decisions on the merits of a case shall preferably be in writing and reasoned, shall be made available at least to the parties without undue delay, and shall be based only on evidence in respect of which the parties were offered the opportunity to be heard. Article 62(5) adds that final administrative decisions in such procedures shall be subject to review by a judicial or quasi-judicial authority. Section 14, Section 80 and the reasoned-order requirement in Agriboard are the domestic expression of the first two of these obligations, and Section 117A is the expression of the third.

The European Patent Convention reaches a similar place by a different route. Article 113(1) EPC provides that decisions of the European Patent Office may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments, and Article 116(1) EPC gives a party the right to oral proceedings on request. The Indian rule that a refusal must stay within the objections communicated to the applicant is the counterpart of Article 113(1), and the Indian right to a hearing “if so required” under Section 14 is the counterpart of Article 116(1). The difference lies in the intensity of enforcement: the EPO’s boards of appeal treat a breach of the right to be heard as a substantial procedural violation, and Indian courts have, in the cases above, begun to treat it with similar seriousness.

Preparing for the Hearing – Practical Observations

Several points follow for practitioners. The applicant should file the request for a hearing within the time stated in the hearing notice or the first examination report, since Section 14 and Section 80 condition the right on a request made within the prescribed time, and Section 80 itself requires that a party desiring a hearing request it at least ten days in advance of the expiry of the time limit specified for the proceeding. The reply to the examination report should deal with every objection, because a detailed reply is what converts a later refusal into one that must be reasoned on the merits, as Star Scientific and Merck Serono show. Any amended claims should be filed before or at the hearing and should be expressly relied upon in the written submissions, since both Treibacher and Proprietect turned on the Controller’s failure to consider them.

At the hearing, the representative should ask the Controller to identify the objections that remain, and should object on the record if a new ground is raised, so that the point is preserved for appeal. After the hearing, written submissions should be filed within the period allowed, and an applicant who has not attended should still file them. Where the Controller has also heard a pre-grant opponent, the applicant should check that a separate Section 14 hearing was granted and that the final order is composite and reasoned, in line with Fresenius. And where an adjournment is needed, the request should state a specific cause and be filed at least three days before the hearing, within the limit of two adjournments of thirty days each.

Conclusion

The law on hearings before the Controller is now more developed than the statutory text suggests. The text of Sections 14 and 80 and Rules 129 and 129A establishes a right to notice of the objections, a right to be heard on request, and a minimum period of ten days for preparation. The High Court decisions have added to this a duty to give reasons that deal with the applicant’s reply, a duty to confine the refusal to the objections communicated, a duty to decide on the merits even where the applicant has not appeared, and a duty to hold the Section 14 hearing separately from any opposition hearing. These are the standards that Article 41(3) of TRIPS describes and that the Patent Office is now held to in practice.

What remains unsettled is the efficacy of the remedy. A remand under Section 117A gives the applicant a fresh hearing but costs years, and the Bombay High Court’s holding that no second appeal lies makes the first appellate decision final. The more durable improvement would be at the Patent Office itself: orders that engage with the reply, hearing notices that state the surviving objections, and a clear practice on notice when new prior art is introduced. Until that happens, the High Courts will continue to supply the discipline, and the practitioner who prepares a hearing as a quasi-judicial proceeding, with a record built for appeal, will be better placed than one who treats it as a formality.

References

The Patents Act, 1970 (as on 1 October 2025), India Code – https://www.indiacode.nic.in/bitstream/123456789/1392/1/A1970-39.pdf
Section 80, The Patents Act, 1970, Intellectual Property India – https://ipindia.gov.in/writereaddata/portal/ev/sections/ps80.html
The Patents Act, 1970, WIPO Lex – https://www.wipo.int/wipolex/en/text/128091
The Patents Rules, 2003, Intellectual Property India – https://ipindia.gov.in/frontend/pdf/patents/rules/Indian_Patent_Rules_2003__1_.pdf
Delhi High Court, Judgments Portal – https://delhihighcourt.nic.in
Delhi High Court, judgment bearing neutral citation 2023/DHC/000268 (Sections 14, 15 and 80) – https://delhihighcourt.nic.in/app/showFileJudgment/CHS12012023WO22023_132120.pdf
Agriboard International LLC v. Deputy Controller of Patents and Designs (Delhi High Court, 31 March 2022) – https://www.casemine.com/judgement/in/624ae2a99fca195af943b6bd
Star Scientific Limited v. Controller of Patents and Designs (Delhi High Court, 30 July 2024), case report – https://kankrishme.com/non-attendance-at-hearing-isnt-abandonment-delhi-high-court-yet-again-mandates-reasoned-orders/
Fresenius Kabi Ipsum Srl v. Assistant Controller of Patents and Designs (Delhi High Court, 2026), case report – https://kankrishme.com/pre-grant-opposition-hearing-cannot-substitute-section-14-hearing-delhi-high-court-reaffirms-distinct-statutory-safeguards/
Vishal Prafulsingh Solanke v. Controller of Patents and Designs (Bombay High Court, Division Bench, 2026), case report – https://www.verdictum.in/court-updates/high-courts/bombay-high-court/vishal-prafulsingh-solanke-anr-v-controller-of-patent-and-designs-ors-2026bhc-os7027-db-1610865
Caleb Suresh Motupalli v. Controller of Patents (Madras High Court), case report – https://www.casemine.com/judgement/in/679f8965060fea11c4ca0682
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Articles 41 and 62 – https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

Hearing Before the Patent Controller in India: Procedure, Natural Justice and Legal Principles

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Hearing Before the Patent Controller in India: Procedure, Natural Justice and Legal Principles

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