A patent is a time-limited monopoly, and every day of that term has commercial value. But what if a large part of it is spent waiting for the patent office rather than enjoying the rights?

That question is now before the Supreme Court of India in Gunjan Sinha @ Kanishk Sinha & Anr. v. Union of India & Anr. The case asks whether Indian law should offer a Patent Term Adjustment (PTA) mechanism, so that time lost to administrative delay can be made up. The matter is listed for hearing on 26 October 2026.

What is Patent Term Adjustment?

Patent Term Adjustment is a mechanism that extends a patent’s term to make up for certain delays by the patent office during examination and grant. The idea is simple: if the delay was not the applicant’s fault, the applicant should not pay for it with lost years of exclusivity.

The best-known example is the United States, where the USPTO adds days to the term when it misses prescribed examination timelines or when prosecution runs unusually long. Time lost through the applicant’s own delays is generally not compensated.

Section 53 of the Patents Act: What the Law Says

The whole case turns on Section 53, so here is what it provides, in plain terms.

Sub-section (1): the 20-year term: Every patent granted after the Patents (Amendment) Act, 2002 came into force has a term of twenty years from the date of filing the application. The same applies to patents that were still alive on that date. The key point is that the law counts from filing, not from grants.

The Explanation: PCT applications: For international applications filed under the Patent Cooperation Treaty that designate India, the twenty years run from the international filing date accorded under the PCT. So, the clock may start even before the application enters the Indian national phase.

Sub-section (2): lapse for non-payment: A patent ceases to have effect if the renewal fee is not paid within the prescribed period, or within any extended period the rules allow. A granted patent therefore needs to be kept alive through timely renewals, or it can end before the 20 years are up.

Sub-section (4): no protection after expiry: Once a patent ends, whether through non-payment of renewal fees or because its term has run out, the subject matter it covered is no longer entitled to any protection. This applies despite anything in any other law.

(Sub-section (3) has been omitted from the Act.)

What this means in practice?

Read together, these provisions make the term a fixed window that starts at filing. Time spent waiting for examination and grant comes out of the patentee’s period of enforceable rights. The Act does give applicants certain rights from the date of publication under Section 11A (7), but the right to sue for infringement arises only after grant.

Nothing in Section 53 pauses, extends or adjusts the 20 years for objections or delays at the patent office. That is exactly the gap the petitioners point to. Because Section 53(4) removes all protection once the term ends, there is no way to recover the lost years afterwards unless the law provides a remedy.

The Facts Behind the Case

The facts, as reported, show the problem clearly:

• Filing date: 2 May 2005
• Grant date: 28 December 2012
• Expiry: May 2025, at the end of the 20-year term from filing

Nearly seven years passed before the patent was granted, so a significant portion of the term went by before the patentee could enforce it. The petitioners are seeking compensation for the lost period, including through a PTA-type mechanism like the one in the US.

What the Calcutta High Court Decided?

Against this statutory background, the Calcutta High Court rejected the challenge. Its reasoning rested on the following points:

1. Section 53 clearly fixes the term at 20 years from the date of filing.
2. The post-publication rights under Section 11A (7) do not include the right to sue before grant.
3. Introducing a new compensation mechanism for patent office delays is a policy matter. It calls for legislative change, not judicial interpretation.

In other words, the court treated this as a gap for Parliament to fill, not for judges.

Why the Supreme Court’s Involvement Matters

The Supreme Court has issued notice and appointed an amicus curia to assist it. That does not signal how the case will be decided, but it shows the issue is being taken seriously. A few points are worth keeping in view:

• The legislature-versus-judiciary question. The core debate is whether courts can read such a remedy into the Act, or whether only an amendment can introduce it.
• The patent has already expired. Because the term ended in May 2025, the relief sought is compensatory, and it will be interesting to see how the Court approaches that.
• The wider policy debate. Even if the petition does not succeed, the hearing may bring renewed attention to grant timelines and the case for statutory reform.

Why Businesses Should Pay Attention

For companies that rely on patents, the length of the effective term matters in several ways:

• Effective exclusivity: Longer enforceable protection means a longer window to recover R&D investment, which is especially important in sectors like pharmaceuticals, biotech and chemicals, where development is costly and regulatory timelines are long.
• Licensing and commercialization: License terms, royalty periods and partnership deals are often priced around the remaining life of the patent.
• Patent valuation: The time left on the clock is a core input into what a patent is worth to investors, acquirers and licensees.
• Prosecution strategy: If the law changes, how and when an applicant responds during prosecution could carry new consequences.

How This Compares Internationally

India’s approach follows the general international standard of a 20-year term from filing, consistent with the TRIPS Agreement. A number of jurisdictions, however, add limited mechanisms to compensate for delays, and the US PTA system is one such example. How closely India might follow any of these models is something only the courts or Parliament can decide.

What Patent Applicants Can Do Now

While the outcome is uncertain, applicants can take practical steps:

• File early and file complete. A well-prepared application reduces avoidable objections.
• Respond promptly to examination reports. Timely, well-reasoned responses help keep prosecution moving.
• Pay renewal fees on time. Under Section 53(2), a missed renewal can end a patent before its full term.
• Review your portfolio’s timelines. Know where each application stands and how much term is likely to remain after grant.
• Factor term into commercial planning. Build realistic grant timelines into licensing and launch strategies.
• Follow the case. A ruling or reform could change how term is assessed.

Conclusion

The question before the Supreme Court is a fundamental one: should the cost of patent office delay fall on the patentee? Whatever the answer, the case has put the real-world length of patent protection firmly on the agenda for inventors, businesses and policymakers alike.

At PATHtoIP, we will continue to follow the proceedings and share updates as they develop.

Need help with patent filing, prosecution or portfolio strategy? Get in touch with the PATHtoIP team.