Sections 37 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.
Chapter VIII, headed "Evidence, etc.", sets out five practical rules. Section 37 says evidence before the Controller is given by affidavit unless he directs otherwise. Section 38 makes the Controller's certificate prima facie evidence of an entry or act. Section 39 admits certified, sealed copies of Patent Office documents in evidence in all courts. Section 40 lets applications and notices be sent by post. Section 41 lets a guardian or court-appointed person act for someone who cannot, by reason of infancy, lunacy or other disability. If you are preparing evidence or acting for a client under a disability, a legal consultation can help you get the formalities right.
s.37: evidence before the Controller is by affidavit unless he directs otherwise, but he may take oral (viva voce) evidence instead of or in addition, or allow cross-examination on an affidavit. s.38: a certificate under the Controller's hand is prima-facie evidence of the entry, its contents and the act. s.39: certified and sealed copies of Patent Office documents and registers are admitted in all courts without further proof, unless a court doubts them. s.40: documents may be sent by post. s.41: a guardian, committee or manager, or a person appointed by court, may act for someone incapable by infancy, lunacy or other disability.
Section 37: evidence before the Controller
"Subject to any rules made under section 44, in any proceeding under this before the Controller, the evidence shall be given by affidavit in the absence of directions by the Controller to the before the contrary; but in any case in which the Controller thinks it right so to do he may to take evidence viva voce in lieu of or in addition to evidence by affidavit or may allow any party to be cross examined on the contents of his affidavit."
The printed text is garbled in places ("under this before the Controller", "to the before the contrary", "may to take"). The sense is clear. Also, the text says "any rules made under section 44", but section 44 deals with convention priority; the rule-making power is in section 47. That looks like a drafting slip, and we flag it here without correcting the section number.
| Point | What the text says |
|---|---|
| General rule | Evidence is by affidavit, unless the Controller directs otherwise |
| Oral evidence | If the Controller "thinks it right", he may take viva voce evidence instead of, or in addition to, affidavit evidence |
| Cross-examination | He may allow any party to be cross-examined on the contents of his affidavit |
| Subject to | Rules made under the Act (the text cites section 44) |
So a party should expect to prove facts by affidavit and should ask for oral evidence or cross-examination only where it matters. The Designs Rules, 2001 prescribe the form of affidavits; see our sibling article on rules 41 and 42. The Controller's powers to receive evidence and enforce attendance are in section 32; see our article on sections 32–34.
Section 38: the Controller's certificate
"A certificate purporting to be under the hand of the Controller as to entry, matter or thing which he is authorised by this Act, or any rules made thereunder to make or do, shall be prima-facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone."
Three things are proved prima facie by such a certificate:
- that the entry was made;
- its contents; and
- that the matter or thing was done or left undone.
"Prima facie" means that, on its face, it proves the point until contradicted. It is not conclusive. The certificate must "purport" to be under the Controller's hand, and must relate to an entry, matter or thing he is authorised to make or do. Compare section 10(4), which makes the register itself prima facie evidence of what the Act directs to be entered; see sections 9 and 10.
Section 39: certified copies in evidence
"Printed or written copies or extracts, purporting to be certified by Controller and sealed with the seal of the Patent Office, of documents in the Patent Office, and of or from registers and other books kept there, shall be admitted in evidence in al courts in India, and in all proceedings, Office without further proof for production of the originals."
(The text prints "al" for "all" and has a stray "Office".) Key words: the copies must be certified by the Controller and sealed with the seal of the Patent Office; they cover documents in the Patent Office and registers and other books; they are admitted "in all courts in India, and in all proceedings" without further proof for production of the originals.
Proviso: "a court may, if it has reason to doubt the accuracy or authenticity of the copies tendered in evidence, require the production of the originals or such further proof as it considers necessary."
So a sealed certified copy is accepted, but a court that has reason to doubt can ask for the originals. Sections 17(2) and 26 are how you obtain certified copies.
Section 40: applications and notices by post
"Any application, notice or other document authorized or required to be left, made or given at the Patent Office or to the Controller, or to any other person under this Act, may be sent by post."
The scope is broad: documents "left, made or given" at the Patent Office, to the Controller or to "any other person under this Act" may be sent by post. The text does not say when a posted document is treated as received, and does not address any other mode such as electronic filing. It is silent on both points. For the Rules on how documents are left and served, see our article on rules 3 and 4.
Section 41: acting for a person under disability
Sub-section (1)
"If any person, is by reason of infancy, lunacy or other disability, incapable of making any statement or doing anything required or permitted by or under this Act, the lawful guardian, committee or manager (if any) of the person subject to the disability, or, if there be none, any person appointed by any court possessing jurisdiction in respect of his property, may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability."
| Who is incapable | Who may act |
|---|---|
| A person incapable by reason of "infancy, lunacy or other disability" | The lawful guardian, committee or manager, if any |
| (if there is none) | Any person appointed by a court with jurisdiction over his property |
The statement or act is made "in the name and on behalf of" the person under disability, and a statement "as nearly corresponding thereto as circumstances permit" is allowed.
Sub-section (2)
"An appointment may be made by the court for the purposes of this section upon the petition of any person acting on behalf of the person subject to the disability or of any person interested in the making of the statement or the doing of the thing."
So the petition for appointment can come from someone acting for the person under disability, or from a person interested in the statement or act being made. The text does not say which court, other than one "possessing jurisdiction in respect of his property".
Illustration (invented)
Tara Crafts, a design proprietor, is a minor who inherited a registered design for a patterned tile from her late father. Her mother, as lawful guardian, applies to register the title and to extend the copyright, making the statements in Tara's name and on her behalf under section 41(1). In a later cancellation petition, evidence is by affidavit (section 37) and the Controller allows cross-examination of the guardian on hers. The guardian files a sealed certified copy of the register entry in court, which section 39 admits without further proof unless the court doubts it, and posts the extension application to the Patent Office under section 40.
Need help with evidence or filing for a person under disability?
Affidavits, certificates and guardians' acts all have formal requirements. Our legal consultation team can prepare the affidavits, obtain sealed copies and structure the filing where a guardian is needed.
Key takeaways
- Evidence before the Controller is by affidavit unless he directs otherwise; he may take oral evidence or allow cross-examination.
- The Controller's certificate under his hand is prima facie evidence of the entry, its contents and the matter done or left undone.
- Certified, sealed copies of Patent Office documents and registers are admitted in all courts without further proof, unless a court doubts them.
- Applications, notices and documents may be sent by post.
- A guardian, committee or manager, or a court-appointed person, may act for someone incapable by infancy, lunacy or other disability.
Read next
- Section 42: avoidance of certain restrictive conditions
- Section 43: legal practitioners and agents
- Rules 41–42: certified copies and form of affidavits
- Design registration in India
Disclaimer: Based on the Designs Act, 2000 as enacted, as consulted on 1 October 2026. Forms, fees and procedure are set by the Designs Rules, 2001 as amended from time to time. This article is general information, not legal advice; check the official text before acting.