20 Years on the Clock, but How Many Count? The Case for Patent Term Adjustment in India.
For a European business considering patent protection in India, what period of effective patent protection can realistically be expected from a 20-year patent term?
Under Indian law, the term runs from filing, even where an application remains pending for years before grant. The resulting loss of effective patent protection is coming before the Indian Supreme Court, listed for 26 October 2026. The Court will consider whether the patent term can be adjusted where delay in examination and grant is attributable to the Patent Office.
India is not alone in facing this problem. Germany and the European Patent Convention, like India, calculate the patent term from filing and do not provide for an adjustment to compensate for examination delay. The United States and China have instead introduced mechanisms that compensate for qualifying delay attributable to the patent administration. The question for India is how the law should account for administrative delay that consumes part of the period of effective patent protection.
The Indian position
Section 53 of the Patents Act 1970 provides that the term of an Indian patent is 20 years from the date of filing the application. The provision does not distinguish between time attributable to the applicant and time attributable to the Patent Office. The patent term therefore continues to run while the application is pending examination and grant.
The consequences of this rule were considered by the Calcutta High Court in Gunjan Sinha @ Kanishk Sinha v Union of India. The case concerned a patent application filed on 2 May 2005 and granted on 28 December 2012, more than seven years later. The applicant challenged Section 53, arguing, among other things, that the delay in grant had reduced the period during which the patent could be effectively exercised and that renewal fees were nevertheless payable during the patent term. The High Court rejected the challenge and upheld the validity of Section 53.
The court distinguished the 20-year term under Section 53 from the provisional rights available under Section 11A(7). From publication until grant, Section 11A(7) gives the applicant certain privileges and rights as if the patent had been granted on the date of publication. The applicant cannot, however, bring infringement proceedings until the patent has actually been granted. The provision therefore offers some protection during the period of pendency, but does not provide the full benefit of an enforceable patent. The court described these provisions as operating in different fields, with Section 11A(7) providing interim protection between publication and grant while Section 53 governs the duration of the patent itself.
The High Court also considered earlier cases concerning delays in the examination process. In Procter & Gamble, the Delhi High Court had observed that patent applications should be decided within a reasonable period. Nittoo Denko similarly considered measures for addressing delays in patent examination, including whether the period lost during examination should be compensated. The committee constituted in that case considered the US patent term adjustment model but concluded that such an approach was not conducive to India. The Calcutta High Court ultimately emphasised that any change to the statutory patent term was a matter for the legislature rather than the courts. (Gunjan Sinha @ Kanishk Sinha v Union of India [25&26]). The issue is now listed to come before Supreme Court on 26 October 2026.
The German and European position
Under Section 16 of the German Patent Act, the term of a patent is 20 years beginning on the day after filing. Article 63 EPC similarly provides for a 20-year term calculated from the filing date of the European patent application. The term therefore runs throughout the examination and grant process. Neither the German Patent Act nor the EPC provides for the term to be adjusted on account of delay in examination or grant. Examination can nevertheless take several years. In 2025, the DPMA reported an average period of 3.1 years from the request for examination to grant. For standard European patent applications, the EPO reported an average processing time of 36.5 months from filing to grant in 2025. These figures include time attributable to the applicant as well as to the patent office and therefore do not, by themselves, establish administrative delay.
Both German and European law provide some protection during the period between publication and grant. Under Section 33 of the German Patent Act, the applicant may claim reasonable compensation for certain uses of the invention after publication of the application and before grant. The claim, however, cannot be asserted until the patent has been granted. Article 67 EPC requires the EU Member States to provide at least a right to reasonable compensation. These provisions provide compensation for certain uses during the pendency of the application, but do not compensate for the time lost from the patent term as a result of examination delay.
Patent term adjustment in other jurisdictions
The United States and China have introduced patent term adjustment mechanisms to compensate for qualifying delay in the patent-grant process. The scale of their patent systems is considerably larger than India’s. In 2024, applicants based in India filed 76,405 patent applications worldwide, compared with 501,831 from US-based applicants and 1,795,715 from China-based applicants. India nevertheless recorded the strongest growth among the three, with filings by India-based applicants increasing by 19.1% in 2024.
At the same time, WIPO reported a grant delay of 37.8 months in India, compared with 29.5 months in the United States and 15.5 months in China. Again, these figures include time attributable to the applicant as well as to the patent office and therefore do not, by themselves, establish administrative delay.
In the United States, 35 USC §154(b) provides for adjustment of the patent term where the United States Patent and Trademark Office fails to meet specified statutory deadlines. This includes, in the circumstances set out in the provision, failure to issue a patent within three years. Where the prescribed conditions are met, the resulting delay is added to the patent term.
China introduced a similar mechanism through its 2020 amendment to the Patent Law. Article 42 provides for compensation where an invention patent is granted more than four years after filing and more than three years after the request for substantive examination. The patentee may request an extension for unreasonable delay in the grant process, excluding delay attributable to the applicant. The implementing rules set out how the compensation period is to be calculated.
For India, these mechanisms offer two practical advantages. They would prevent a patentee from losing part of its effective patent term because of delay for which it was not responsible, while excluding periods attributable to the applicant. They would also provide a defined statutory method for calculating and compensating qualifying delay, rather than leaving the consequences of prolonged examination to the general operation of Section 53.
Considering Patent Term Adjustment
The present Indian framework places the consequence of examination and grant delay on the patentee. A patent term adjustment mechanism could instead ensure that qualifying delay attributable to the Patent Office does not reduce the period of effective patent protection, while excluding delay for which the applicant is responsible.
For European businesses, the issue is ultimately one of predictability. An applicant seeking patent protection in India must currently account for the possibility that delays in examination and grant will reduce the period during which the resulting patent can be enforced. A defined mechanism for compensating qualifying administrative delay would provide greater certainty as to the protection ultimately available. The same question may merit consideration in Europe, where the current framework likewise leaves the patentee to bear the consequences of examination delay.
References:
- Yash Mittal, ‘S. 53 Patents Act | Should Patent Term Be Counted From Date Of Grant If There Was Delay In Deciding Application? Supreme Court To Decide’ LiveLaw (29 September 2026) https://www.livelaw.in/top-stories/s-53-patents-act-should-patent-term-be-counted-from-date-of-grant-if-there-was-delay-in-deciding-application-supreme-court-to-decide-552272
- Gunjan Sinha @ Kanishk Sinha & Anr. v. The Union Of India & Anr. MAT 903 OF 2024 WITH CAN/2/2024
- Section 53(1), The Patents Act, 1970 (Act No. 39 of 1970, amended up to Act No. 15 of 2005), India
- Section 11A(7), The Patents Act, 1970 (Act No. 39 of 1970, amended up to Act No. 15 of 2005), India
- Section 16, Patentgesetz (German Patent Act)
- Article 63(1), European Patent Convention
- Art 42, China Patent Law.
- 35 U.S. Code §154(b).
- German Patent and Trade Marks Office, ‘2025 at a Glance’ https://www.dpma.de/docs/presse/dpma_factsheet_engl_2025_web.pdf
- European Patent Office, ‘Annual Review 2025: Executive Summary’ https://www.epo.org/en/about-us/transparency-portal/general/annual-review-2025/executive-summary
- WIPO, WIPO IP Facts and Figures 2025, https://www.wipo.int/edocs/pubdocs/en/wipo-pub-943-2025-en-wipo-ip-facts-and-figures-2025.pdf
- WIPO, World Intellectual Property Indicators 2025, https://www.wipo.int/edocs/pubdocs/en/wipo-pub-941-17-2025-en-world-intellectual-property-indicators-2025.pdf , A48.
