Sections 44 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.
Two small but practical points are settled by these sections. Section 44 allows the Controller to correct the name on a patent where the grantee had died, or a company had ceased to exist, before the grant. Section 45 fixes the date of a patent as the date on which the application was filed, requires that date to be entered in the register, and bars suits for infringement committed before the date of publication of the application. When ownership questions arise, it helps to take early advice through a legal consultation.
Section 44: if the person to whom a patent was granted had died, or a body corporate had ceased to exist, before the patent was granted, the Controller may amend the patent by substituting the name of the person to whom it ought to have been granted, and the patent has effect, and is deemed always to have had effect, accordingly. Section 45: subject to other provisions, a patent is dated as of the date on which the application was filed, that date is entered in the register, and no suit or proceeding may be commenced for an infringement committed before the date of publication of the application.
Section 44: a patent granted to someone who was no longer there
"Where, at any time after a patent has been granted in pursuance of an application under this Act, the Controller is satisfied that the person to whom the patent was granted had died, or, in the case of a body corporate, had ceased to exist, before the patent was granted, the Controller may amend the patent by substituting for the name of that person the name of the person to whom the patent ought to have been granted, and the patent shall have effect, and shall be deemed always to have had effect, accordingly."
The word "granted" replaced "sealed" in two places in 2005, when section 43 was recast to speak of grant.
The elements:
| Element | Text |
|---|---|
| When | "at any time after a patent has been granted" |
| What the Controller must be satisfied of | The grantee "had died", or, for a body corporate, "had ceased to exist", before the patent was granted |
| Power | The Controller "may amend the patent" |
| How | By "substituting for the name of that person the name of the person to whom the patent ought to have been granted" |
| Effect | The patent "shall have effect, and shall be deemed always to have had effect, accordingly" |
Points to note.
It is about the time of grant. The death or ceasing to exist must have happened before the patent was granted. If the grantee dies after the grant, section 44 does not apply; transmission of the patent in that case falls under other provisions covered in the articles on the register and assignments.
Retrospective effect. The words "shall be deemed always to have had effect, accordingly" make the corrected patent operate as though the right name had been there from the start. This protects the continuity of the patent, including its date.
"The person to whom the patent ought to have been granted". The section does not say who that is. It follows from the rest of the Act: the application proceeds in the name of the applicant or, where the applicant dies before grant, the legal representative may apply (section 6(1)(c)) and section 20(4) allows joint applications to proceed in the surviving applicants' names. See our articles on section 6 and on sections 18 to 20.
The Controller "may". The power is discretionary and depends on his being "satisfied". The Act does not say how the matter is brought to him, what evidence is needed or whether there is a time limit; those are for the Patents Rules, 2003, and no procedure is stated here.
Example. Suresh Menon, a fictional inventor, applied for a patent on a seed-sorting device in his own name. He died in March; the Controller, not yet aware, found the application in order for grant and granted the patent in May. His legal representative, his daughter, brings the facts to the Controller. If the Controller is satisfied that the grantee had died before the patent was granted, he may amend the patent by substituting the name of the person to whom it ought to have been granted, and the patent is deemed always to have had effect accordingly.
Section 45: the date of a patent
Section 45(1): dated as of the filing date
"Subject to the other provisions contained in this Act, every patent shall be dated as of the date on which the application for patent was filed."
This sub-section was substituted by the 2002 Amendment Act (with effect from 20-5-2003). The rule is that the date of the patent is the date of filing, not the date of grant. The opening words "Subject to the other provisions contained in this Act" matter, because other sections change the filing date for particular purposes:
- section 9(4) and section 17: post-dating an application;
- section 16: a further application deemed filed on the date of the first;
- section 17(2): an application amended under section 15 deemed made on the date of compliance.
See our articles on sections 16 and 17 and section 9. The date of the patent is not the same thing as a claim's priority date, which is a separate concept under section 11. Our post on the term of a patent discusses how the date relates to the period of protection; the length of the term itself is in section 53, covered later in this series.
Section 45(2): entry in the register
"The date of every patent shall be entered in the register." The register is under section 67. Section 43(1) also provides that the date on which the patent is granted is entered in the register, so the register carries both the date of the patent (the filing date) and the date of grant.
Section 45(3): no suit for earlier infringement
"Notwithstanding anything contained in this section, no suit or other proceeding shall be commenced or prosecuted in respect of an infringement committed before the date of publication of the application."
The words "the date of publication of the application" replaced earlier wording in 2005. Two consequences:
- Although the patent is dated as of the filing date, a suit or other proceeding cannot be commenced or prosecuted for an infringement committed before the application was published.
- For the period from publication to grant, section 11A(7) gives the applicant the like rights as a patentee but bars infringement proceedings until grant. Our article on section 11A covers that.
The text does not say whether a suit may be started after grant for an act done between publication and grant; that sits with sections 11A(7) and 48 and is not decided by section 45(3), which deals only with infringement before publication.
Example. Anahita Biotech, a fictional company, files an application on 3 February. The application is published in due course, and the patent is granted later. The patent is dated 3 February. A competitor began making the product on 1 April, before publication. Under section 45(3), no suit or other proceeding can be commenced or prosecuted for the infringement committed before the date of publication, even though the patent is dated 3 February.
What these sections do not say
- Section 44 does not say what happens where a grantee dies after grant.
- It does not specify evidence, form or fee for the amendment.
- Section 45 does not state the term of the patent or how renewal fees are counted.
- Section 45(3) does not define "infringement" or say what relief is available for later acts.
Need help with ...?
If a patent has been granted to a person who had died, or to a company that no longer existed, the correction needs the right facts and papers placed before the Controller. Our team can advise on the steps through a legal consultation.
Key takeaways
- The Controller may amend a patent granted to a person who had died, or a body corporate that had ceased to exist, before the grant, by substituting the right name; the patent is deemed always to have had effect accordingly.
- A patent is dated as of the date its application was filed, subject to other provisions of the Act.
- The date of every patent is entered in the register.
- No suit or proceeding may be commenced or prosecuted for infringement committed before the date of publication of the application.
Read next
- Section 46: form, extent and effect of patent
- Section 43: grant of patents
- Section 47: conditions of grant
- Term of a patent: 20 years and renewal fees
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.