Rule 138 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Rule 138 is the general time-extension power in the Rules. Before March 2024 it allowed the Controller to extend most prescribed times by one month, with a long list of exceptions. The Patents (Amendment) Rules, 2024 replaced it: the Controller may now extend time or condone delay for up to six months on a request in Form 4.
Under rule 138 as substituted in 2024, "notwithstanding anything contained in these rules", the time specified for doing any act or taking any proceeding may be extended, or any delay condoned, by the Controller for a period of up to six months, on a request in Form 4 made before the expiry of the said period of six months. The request may be made any number of times within the six months. As per the First Schedule as substituted in 2024, entry 4(v), the fee is Rs 10000 per month (e-filing) for a natural person, startup, small entity or educational institution, and Rs 50000 per month for others.
The Act behind this rule
Rule 138 sits with the Act's provisions on the Controller's discretionary powers and extension of time; see Sections 79-81: evidence, discretionary powers and extension of time. For related time limits in the fee provisions, section 142(4) is named on Form 4 and in the Second Schedule entry; see Section 142: fees.
If you have missed a date in a pending application and need to decide whether to ask for more time, our patent objection reply team can help you plan a response within the extended period.
The rule as substituted in 2024
The Patents (Amendment) Rules, 2024 (G.S.R. 211(E), 15 March 2024), in force on publication, substituted the rule with the heading "Power to extend time specified or condone delay":
"Notwithstanding anything contained in these rules, the time specified for doing any act or taking any proceeding thereunder may be extended or any delay may be condoned by the Controller for a period of up to six months, upon a request made in Form 4, where such request is made before the expiry of the said period of six months:
Provided that such request may be made any number of times within the specified period of six months."
Reading the text
- Scope. "The time specified for doing any act or taking any proceeding thereunder": the power is general and, on its words, not limited to a list of rules. It starts with "notwithstanding anything contained in these rules".
- Two remedies. The time may be extended, or a delay may be condoned.
- Up to six months. The Controller may grant a period of up to six months.
- Form 4. The request is made in Form 4.
- Timing of the request. It must be made "before the expiry of the said period of six months". The rule does not say from which date the six months run. One reading is that the six months run from the expiry of the time that was originally specified, so the request can be made at any point within those six months; another is that the request must be made before the time expires. The text is not explicit, so check the current Patent Office practice rather than rely on either reading.
- Repeat requests. The proviso says the request may be made "any number of times within the specified period of six months".
- Discretion. "May" leaves the Controller a discretion; the rule gives no test for granting it.
What the old rule 138 provided
Before 2024, rule 138 was headed "Power to extend time prescribed". In the past tense:
- Sub-rule (1) let the Controller extend the time prescribed by the Rules for doing any act or taking any proceeding for a period of one month, if he thought it fit and on terms he directed, except for the times prescribed in clause (i) of sub-rule (4) of rule 20, sub-rule (6) of rule 20, rule 21, sub-rules (1), (5) and (6) of rule 24B, sub-rules (10) and (11) of rule 24C, sub-rule (4) of rule 55, sub-rule (1A) of rule 80 and sub-rules (1) and (2) of rule 130.
- Sub-rule (2) required any request for extension to be made before the expiry of the time prescribed in the Rules.
The comparison is:
| Point | Old rule 138 | Rule 138 from March 2024 |
|---|---|---|
| Length of extension | One month | Up to six months |
| Exceptions | Listed in sub-rule (1) | None listed in the rule |
| Form | Not named in the rule | Form 4 |
| When to ask | Before the prescribed time expired | Before the expiry of the said six months |
| Repeat requests | Not addressed | Any number of times within six months |
The old list of exceptions did not disappear from the Rules: the 2024 amendments added sub-rule (2) to rule 137, which excludes a similar list of matters from the Controller's power to correct irregularities; see our article on Rules 137-139. Some of the individual rules also carry their own Form 4 extension, for example rule 131(2) and rule 130; see Rule 131 and Rule 130. The Rules do not say whether the general six-month power of rule 138 can be used for periods that have their own specific extension; the words "notwithstanding anything contained in these rules" point towards the general power, but the text does not settle the point.
A cross-reference elsewhere has not been updated: rule 6(6) still says "notwithstanding anything contained in sub-rule (2) of rule 138", although the substituted rule 138 has no sub-rule (2). Our article on Rules 5-6 covers rule 6.
Form 4 as substituted in 2024
Form 4 is titled "Request for extension of time or condonation of delay" and cites "". The Second Schedule list entry (as substituted in 2024) names sections 53(2) and 142(4) and rules 12(5), 13(6), 24B(6), 24C(11), 80(1A), 130 and 138, without rule 131(2); the form's own citation includes it. We note both as printed.
The form asks for:
- the name of the applicant: "I/We ... hereby request for extension of time for ... month(s) under section/rule ... in connection with my/our application/Patent No. ...", and the reasons for making the request, with date;
- the signature of the applicant or his authorised registered patent agent;
- the name of the natural person who has signed;
- the address to the Controller of Patents, The Patent Office.
The foot of the form says "For fee: See First Schedule."
Fee: entry 4(v)
As per the First Schedule as substituted in 2024, Table I, entry 4(v) (request for extension of time under rule 138, per month), Form 4:
| Mode | Natural person, startup, small entity or educational institution | Others |
|---|---|---|
| E-filing | Rs 10000 | Rs 50000 |
| Physical filing | Rs 11000 | Rs 55000 |
Both modes are allowed. The amounts are charged per month, so an extension of three months is charged for three months. Other sub-entries of entry 4 apply to specific rules: 4(i) covers sections 53(2) and 142(4) and rules 13(6), 80(1A) and 130; 4(ii) covers rule 12 and rule 131; 4(iii) covers rule 24B(6); 4(iv) covers rule 24C(11). Entry 4(ii) prints "sub-rule (4) of rule 12" although the Form 3 condonation power is in sub-rule (5), and "sub-rule (2) or rule 131" where "of" appears to be intended; both are as printed.
Practical example
Vega Robotics Pvt Ltd, a company that is not a startup or small entity, misses a date for filing a document in a pending application. Its patent agent asks for an extension in Form 4, stating the reasons and the number of months wanted, and pays the rule 138 fee, entry 4(v), at Rs 50000 per month (e-filing). The Controller allows two months. The agent files again within the same six months to ask for one more; the proviso allows repeat requests within the six months. If the missed date was one that has its own Form 4 provision, such as the Form 27 statement under rule 131(2) or a review under rule 130, the specific rule and its own fee head should be checked first.
Need help with a missed date?
An extension is costly per month, so it helps to know whether another route is cheaper and whether a specific rule applies. Our patent objection reply service can help you decide and prepare the Form 4 request.
Key takeaways
- Rule 138 was substituted in 2024: extension or condonation for up to six months, on Form 4.
- The old rule 138 allowed one month and listed exceptions.
- The request may be repeated any number of times within the six months.
- Fee, as per the First Schedule as substituted in 2024, entry 4(v): Rs 10000 (e-filing) or Rs 11000 (physical) per month for the first column; Rs 50000 or Rs 55000 per month for others.
- Rule 6(6) still cites a sub-rule (2) of rule 138 that no longer exists.
- The text is the Rules as amended up to the Patents (Second Amendment) Rules, 2024; later amendments should be checked.
Read next
- Rules 137–139: powers of the Controller generally and public hearing
- Rule 131: statement of working of patents in Form 27
- Rule 12: statement and undertaking regarding foreign applications
- Response to the first examination report
Disclaimer: Based on the Patents Rules, 2003 as consolidated up to 21 September 2021 and as amended by the Patents (Amendment) Rules, 2024 and the Patents (Second Amendment) Rules, 2024, as consulted on 2 October 2026. Later amendment rules, forms and fees should be checked in their current form. This article is general information, not legal advice; check the official text before acting.