In a matter concerning a writ petition challenging the constitutionality of the 20 year time period from the date of the application, a DB has upheld the Single Judge order rejecting the writ petition. Taking a look at the DB judgement, SpicyIP intern Hruthika Addlagatta highlights the missing discussion on Section 45(3) and how the case flags an important concern of the applicants- delayed examination of the patent applications. Hruthika is a 1st year law student from NALSAR University of Law, Hyderabad.
Calcutta High Court Refuses to Hold 20-Year Patent Term from Date of Application as Unconstitutional
By Hruthika Addlagatta
The Calcutta High Court, in the recent case of Gunjan Sinha @Kanishk Sinha v. Union of India, examined a fundamental question in the framework of patent law in India: does the implementation of patent terms, which begin on the date of filing but aren’t enforceable until they are granted, ring hollow when the mandated twenty year protection doesn’t happen? The petitioners in the current case had filed their patent application in 2005, from which their term began, but were not granted the patent until after seven years in 2012. During this seven-year duration, the application was pending and published, but they couldn’t take action against infringers. However, the waiting period was also included within their patent term. The petitioners contended this, stating that it undermined statutory rights as well as the constitutional guarantee of meaningful patent rights. In this post, I’ll take a look at the judgement of the Calcutta High Court and also touch upon the problem raised by the applicant.
Background
This case primarily challenged the coherence and constitutional validity of Sections 11A(7) and 53 of the Patents Act, 1970. The term of a patent is stipulated in Section 53 as twenty years, which the Court noted is in compliance with Article 33 of the TRIPS Agreement, which mandates the minimum term of protection that a member state has to offer. Section 11A(7) provides for some interim rights before the grant of the patent; however, most notably, it explicitly prevents parties from filing infringement suits.
The single judge bench found no inconsistency and instead stated that the two sections applied at different stages and were intended to operate together. Their reasoning was that Section 11A(7) would fulfil the need for interim rights while Section 53 ensured that the law was compliant with the TRIPS agreement. In an appeal against the judgment, the petitioners argued before the Division Bench that the scheme violated Article 14 of the Constitution, as it resulted in unequal treatment of patentees due to delays in the grant process.
The division bench found no violation of Article 14, which guarantees equality before the law, citing that these sections applied to all equally. Moreover, the judges applied Article 226 of the Indian Constitution and deferred the question of reform to Parliament, reinforcing the idea of judicial restraint. The Division Bench also reaffirmed that Sections 11A(7) and 53 operated hand in hand, deciding that interim rights under Section 11A(7) did not dilute the fixed term established under Section 53, but instead reflected a legislative balance between early disclosure and enforceable protection.
While the Court gave its reasons for its formalistic interpretation of Section 11A(7) and Section 53, there still seems to exist a stark imbalance in the current legal framework. The main problem is that the patent’s twenty-year term clock ticks even when its rights are not fully enforceable. Under Section 11A(7), upon publication, the patentee is only conferred provisional rights, some subject to whether the patent is actually granted. This period can last for any amount of time, depending on the patent offices, but is often arbitrary and leaves applicants in the dark.
This flaw in mechanics can come at a high cost to inventors in lucrative fields where inventions become obsolete in the matter of just a few years. The time spent waiting for the grant can sometimes feel like a “dead” period where innovators lack the power to actively enforce their rights.
The Missing Discussion on Section 45(3)
Interestingly, neither the petitioner/ appellant nor the Courts discussed the importance of Section 45(3) to resolve this stalemate. In essence, the provision prohibits the filing of infringement suits before publication. A constructive interpretation of Section 45(3) may provide for retrospective action against infringers, once the patent is granted, and allow the patentee to file an infringement suit for any infringing activity taking place in the time period between publication and grant. However, this provision still does not seem to be the best solution. While infringement suits can be initiated retrospectively once the patent is granted, this offers little comfort in real time, especially in fast-moving fields where delayed action can mean irreversible market loss.
The Need for a Swift and Efficient Examination
Here, the patentee bears costs for common procedures like renewal fees or the burden of public disclosure without enjoying the patent-guaranteed privilege of exclusivity. Once the complete specification is published, the invention is made publicly accessible, thereby disclosing key technical information. This exposes the invention to potential copying or exploitation, even though the applicant is powerless to act until the patent is formally granted. The risk of infringement without enforcement tools further erodes the practical value of the patent term. Conditional, uncertain and retrospective interim rights contribute little to quell these concerns, by creating a vacuum where they virtually cannot enforce their patent.
The question of equality also rings as a violation of Article 14, which states that all laws must apply to all equally. However, a twenty-year patent term may take varying amounts of time between its application and grant. This creates an inequality when one person enjoys exclusive and comprehensive rights for a longer period of time, while others lose several precious years to waiting. This difference does not arise through any action or lack thereof on the part of the applicant, but depends on how long the patent office takes to grant the patent. A state-created delay causing uneven access to a statutory right, therefore calls into question the matter of constitutional fairness.
The Courts, while adjudging the case, often alluded to the TRIPS agreement, especially Article 33, which stipulates that a patent term must be for twenty years. However, a larger picture interpretation of the TRIPS provisions highlights the inconsistencies of the principles enshrined in Articles 28 and 41. Article 28 states that patentees are guaranteed the right to prevent third parties from making, using, or selling a protected invention, and Article 41 requires members to ensure that IP enforcement procedures are fair and effective. Therefore, delaying the grant of patents undermines the spirit, if not the actual letter, of the agreement.
The Gunjan Sinha case reveals that India’s patent problems stem not from the 20-year statutory term, but from the Patent Office’s endemic delays that silently erode protection periods. Inventors suffer not because of the law’s structure, but because systemic inefficiencies consume critical years of patent life with opaque, seemingly arbitrary procedural holdups, effectively shortening innovation protection without accountability or recourse. This raises the question: can we continue to implement a model that offers patentees a term in theory, but imposes administrative stagnation on them in practice?
Primarily, the current case begs that the administrative dysfunction that breeds the problem first be addressed. These delays point to understaffed offices, poorly trained officials, limited digital integration, and inefficient timelines for oppositions and hearings (these issues have previously been discussed on the blog here, here, and here.) These are operational failures that require bureaucratic changes, institutional investment and clarity in accountability systems.
A substantial increase in the number of examiners, clear timelines for the examination of applications, compulsory adaptation of digital technology, and mechanisms to ensure a predictable examination window would form a serious reform agenda.
Some jurisdictions offer recourse to compensate for systemic delays. For example, the United States offers Patent Term Adjustments that offset delays attributed to the USPTO. Along similar lines, the European Patent Convention under Article 67 allows equitable compensation in such situations. Japan and Korea have extensions based on narrow statutory thresholds of delays. However, these mechanisms only operate within well-established systems where delays are an outlier and not the norm. These systems are predictable and follow sufficient protocol not to prevent such mishaps in the first place.
India’s patent system needs structural reform, not just compensatory solutions. The fundamental problem is the Patent Office’s chronic processing delays, which undermine the essential compact between inventors and the state. When innovators surrender trade secrets for patent protection, they deserve timely examination in return. True reform requires investment in examiner capacity, digital workflow optimisation, and enforceable processing timelines with meaningful accountability measures. Without addressing these systemic inefficiencies, the statutory twenty-year protection period becomes merely symbolic—a promise on paper that fails to deliver real-world value to inventors who fulfil their disclosure obligations.