Sections 26 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.
Section 26 deals with a patent obtained from someone else: if, in an opposition proceeding, the Controller finds that the invention was obtained from the opponent, he can direct the patent to stand in the opponent's name or cut the obtained part out. Section 28 deals with naming the inventor in the patent and the register. Section 27 no longer exists. Disputes about who is the inventor or who the invention was taken from are sensitive for employers and research teams alike, and a legal consultation before a dispute hardens is often the cheapest route.
Section 26: if the Controller revokes a patent in opposition because the invention was obtained from the opponent, he may, on the opponent's request, direct the patent to stand amended in the opponent's name; if only a part was obtained, he may require that part to be excluded. Section 28: if satisfied that a person is the inventor of the invention or a substantial part of it and that the application is a direct consequence of that, the Controller causes him to be mentioned as inventor in the complete specification and the register, before grant, without conferring or derogating from any rights under the patent.
Section 27 is omitted
Section 27 (refusal of patent without opposition) was omitted by the Patents (Amendment) Act, 2005 with effect from 1-1-2005. Opposition itself is in section 25, which already has its own posts: pre-grant opposition, section 25(1) and post-grant opposition, section 25(2). We do not repeat them here.
Section 26: where the invention was "obtained"
Section 26(1)
"Where in any opposition proceeding under this Act the Controller finds that— (a) the invention, so far as claimed in any claim of the complete specification, was obtained from the opponent in the manner set out in clause (a) of sub-section (2) of section 25 and revokes the patent on that ground, he may, on request by such opponent made in the prescribed manner, direct that the patent shall stand amended in the name of the opponent; (b) a part of an invention described in the complete specification was so obtained from the opponent, he may pass an order requiring that the specification be amended by the exclusion of that part of the invention."
| Finding | Controller's power | Who must ask |
|---|---|---|
| Invention as claimed was obtained from the opponent and the patent is revoked on that ground | May direct that the patent "stand amended in the name of the opponent" | The opponent, by request in the prescribed manner |
| Only a part was so obtained | May order the specification amended by excluding that part | The text does not say a request is needed |
Both limbs refer to being obtained "in the manner set out in clause (a) of sub-section (2) of section 25". Clause (a) is the "obtaining" ground in section 25; we do not reproduce it here.
Section 26(2): the opponent's own pending application
This protects an opponent who, before the Controller's order under clause (b), has filed his own pending application for an invention that included the whole or a part of what was obtained from him. The Controller "may" treat that application, so far as it relates to the obtained invention, as filed, for priority-date purposes only, on the date the patentee filed the corresponding document. For all other purposes it proceeds as an ordinary application. See section 11 on priority dates.
Example. Dr Leela Kapoor, a fictional researcher, shares a method for a low-cost water sensor with a collaborator, Nitin, under no agreement. Nitin files an application in his own name. Leela opposes under section 25 on the ground that the invention was obtained from her. If the Controller finds the claimed invention was obtained from her and revokes the patent on that ground, he may on her request direct that the patent stand amended in her name. If only the circuit part was obtained from her, he may order the specification amended to exclude that part. If Leela had already filed her own application for the sensor, section 26(2) lets the Controller treat it as filed, for priority-date purposes, on Nitin's earlier filing date.
Section 28: mention of inventor
Section 28(1): the test
"If the Controller is satisfied, upon a request or claim made in accordance with the provisions of this section,— (a) that the person in respect of or by whom the request or claim is made is the inventor of an invention in respect of which application for a patent has been made, or of a substantial part of that invention; and (b) that the application for the patent is a direct consequence of his being the inventor, the Controller shall, subject to the provisions of this section, cause him to be mentioned as inventor in any patent granted in pursuance of the application in the complete specification and in the register of Patents:
Provided that the mention of any person as inventor under this section shall not confer or derogate from any rights under the patent."
Two conditions, both required: (a) the person is the inventor of the invention or a substantial part of it, and (b) the application is a direct consequence of his being the inventor. If satisfied, the Controller "shall" cause the person to be mentioned in the complete specification and in the register. The proviso is important: being named as inventor does not by itself give or take away rights under the patent. (This section was one of those that began on 1-4-1978; see our article on section 1.)
Section 28(2) and (3): who may ask
- (2): a request may be made in the prescribed manner "by the applicant for the patent or (where the person alleged to be the inventor is not the applicant or one of the applicants) by the applicant and that person".
- (3): "If any person other than a person in respect of whom a request in relation to the application in question has been made under sub-section (2) desires to be mentioned as aforesaid, he may make a claim in the prescribed manner in that behalf." The printed text shows those words in square brackets; the footnotes do not say which Act inserted them.
So the applicant, or applicant and inventor together, make a request; any other person who wants to be mentioned makes a claim.
Section 28(4): the time
"A request or claim under the foregoing provisions of this section shall be made before the grant of patent." This sub-section was substituted by the 2005 Act. Sub-section (5) was omitted by the same Act, so the section moves from (4) to (6).
Section 28(6): notice and hearing
Where a claim is made under sub-section (3), the Controller gives notice of the claim to every applicant (other than the claimant) and to any other person he considers interested. Before deciding a request or claim under (2) or (3), the Controller, "if required", hears the person in respect of or by whom it is made and, for a (3) claim, any person who was given notice.
Section 28(7): removing a wrongly mentioned inventor
Any other person who alleges that a person mentioned as inventor "ought not to have been so mentioned may at any time apply to the Controller for a certificate to that effect". There is no deadline. The Controller "may", after hearing any interested person if required, issue a certificate, and if he does, he "shall rectify the specification and the register accordingly".
Example. Sunil leads a team at fictional Aurora Labs that develops a fuel-cell electrode. The company applies for a patent naming only Sunil. A junior engineer, Farah, says she invented a substantial part of the electrode. Before grant she makes a claim in the prescribed manner under section 28(3). The Controller gives notice to the applicant, hears the parties if required and, if satisfied on both tests, causes her to be mentioned as inventor in the specification and register. The mention does not change who owns the patent.
What these sections do not say
- They give no form, fee or period for requests, claims or certificates; those are "as prescribed".
- For tax treatment of royalties received by an inventor, see our income-tax guides, for example our income-tax guides on royalty income; that is not a Patents Act matter.
Need help with ...?
Inventor credit and "obtained from me" disputes turn on documents and dates gathered early. Our team can help review the position and plan the next step through a legal consultation.
Key takeaways
- Section 26 lets the Controller transfer a patent to the opponent, or exclude a part, where the invention was obtained from the opponent and the patent is revoked on that ground.
- Section 28 requires the Controller to mention a person as inventor if he is the inventor (or of a substantial part) and the application is a direct consequence of that.
- Requests and claims under section 28 must be made before grant.
- A mention as inventor does not confer or take away rights under the patent.
- Section 27 is omitted.
Read next
- Section 29 to 31: anticipation by publication, communication to Government and display
- Section 6: who can apply for a patent
- Post-grant opposition: section 25(2)
- Rights of a patentee: what a patent protects
Disclaimer: Based on the Patents Act, 1970 as amended up to the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and time limits under the Patents Rules, 2003 change from time to time and are not covered here. This article is general information, not legal advice; check the official text before acting.