Restoration of Lapsed Patents under the Patents Act, 1970

A patent is awarded for 20 years considered from the date of filing. After the expiry of the period, the patent holder or his legal agent may apply the specified mode for the lapsed patent’s renewal. Where the patent is being held by two or more people together then with the Controller’s consent, one or more of them without joining by others may apply for restoration within 18 months from the date the patent has terminated

What is Restoration of Lapsed Patents?

A patent that has been terminated or ceased to have any effect is known as a lapsed patent. Bringing it back in effect is called restoration of lapsed patent. 

Lapse of a patent occurs due to failure to make payment (i.e., assigned fees) within the specified period under Section 53 of the Patent Act 1970 or within such time, provided under Section 142 of the Act.

How is the lapsed patent restored?

The Patents Act provides specific provisions for restoring a lapsed patent. The patent holder or his legal representative may apply in the prescribed manner to restore the lapsed patent. If two or more people own the patent, then with the Controller's permission, one or more of them exclusively may submit the request for restoration within 18 months from the date the patent lapses. 

The patent holder or his legal representative has to make the request. If the patent holder misses out on paying the restoration fee within the designated period and within the extendable term of six months by asking for the extension of duration, the patent lapses from the expiration date of the extended period. Once the patent lapses for the non-payment of the restoration fee can be restored within 18 months from the lapse date.

If an overdue annuity is not paid within the extended term, the one year for recovery commences from the record date.

What is the procedure of lapsed patent restored?

The restoration of lapsed patents follows a specific procedure:

Step 1: When the Controller should be initially convinced that the failure to pay the restoration fee was accidental and there had been no unnecessary delay, the request for restoration will be issued in the official journal.
Step 2:  If the Controller is satisfied that the restoration has not been made, the Controller may issue a notice to the applicant to that effect. 
Step 3: Notice of Opposition can be submitted in the prescribed manner to the application within 2 months of the date of publication in the official journal.

What are the rights of the patent holder after restoration?

After the restoration of the lapsed patent, the patent holder's rights shall be regulated by the provision as the Controller thinks fit for the protection of benefit of persons who might have started to avail them. Moreover, you can follow the provisions mentioned in Sec. 62(1) of the Patents Act 1970.

On the lapse of the patent for non-payment of the restoration fees, the patent holder loses his title in the patent, and the discovery becomes a property of the public.

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