Sections 61 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.
Once a patent has lapsed for non-payment of a renewal fee, section 60 lets the patentee apply for restoration. Section 61 says what the Controller does with that application: he hears the applicant if needed, publishes it if prima facie satisfied, hears any opposition and, if the patentee succeeds, restores the patent on payment. Section 62 limits the restored patent: third parties who began to use the invention in the gap are protected, and no suit lies for infringement in that gap. For help with a lapsed patent, see our patent renewal service.
The Controller publishes a restoration application only if prima facie satisfied that the failure to pay was unintentional and that there was no undue delay. Any person interested may oppose on either of those two grounds. If there is no opposition, or the Controller decides for the applicant, he restores the patent on payment of the unpaid renewal fee and an additional fee. Under section 62, rights of the restored patent are subject to protection of persons who began using the invention in the gap, and no infringement suit lies for the period between lapse and publication of the application.
Where these sections fit
Section 60, which has its own article, says that a patentee (or legal representative, or one of several joint patentees with the Controller's leave) may apply for restoration "within eighteen months from the date on which the patent ceased to have effect", and that the application must contain a verified statement of the circumstances that led to the failure to pay. See our existing guide on restoration after lapse under section 60. The lapse itself arises under section 53.
The words "publish the application" in section 61(1) and "publication" in section 62 replaced "advertise" and "advertisement" by the Patents (Amendment) Act, 2005 (from 1 January 2005). The other amendments of this chapter are in section 60. The Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not alter sections 61 and 62.
Section 61: procedure for disposal
Sub-section (1): the prima facie test and publication
"If, after hearing the applicant in cases where the applicant so desires or the Controller thinks fit, the Controller is prima facie satisfied that the failure to pay the renewal fee was unintentional and that there has been no undue delay in the making of the application, he shall publish the application in the prescribed manner."
- A hearing is given if the applicant so desires or the Controller thinks fit.
- Two things must prima facie be shown: the failure was unintentional, and there was no undue delay in applying.
- If satisfied, the Controller "shall" publish. The manner is prescribed by the Rules.
Within the prescribed period, "any person interested may give notice to the Controller of opposition thereto on either or both of the following grounds":
- (a) that the failure to pay the renewal fee was not unintentional; or
- (b) that there has been undue delay in the making of the application.
Opposition is limited to those two grounds. The period for opposing is prescribed, not stated in the Act.
Sub-section (2): hearing the opposition
"If notice of opposition is given within the period aforesaid, the Controller shall notify the applicant, and shall give to him and to the opponent an opportunity to be heard before he decides the case."
Sub-section (3): restoration
"If no notice of opposition is given within the period aforesaid or if in the case of opposition, the decision of the Controller is in favour of the applicant, the Controller shall, upon payment of any unpaid renewal fee and such additional fee as may be prescribed, restore the patent and any patent of addition specified in the application which has ceased to have effect on the cesser of that patent."
Two results: the main patent is restored, and so is any patent of addition that is specified in the application and that lapsed when the main patent ceased. A patent of addition that is not specified is not covered by the wording. Patents of addition are explained in the article on sections 54 to 56. The additional fee is prescribed; no figure is given here.
Sub-section (4): entries in the register
"The Controller may, if he thinks fit as a condition of restoring the patent, require that an entry shall be made in the register of any document or matter which, under the provisions of this Act, has to be entered in the register but which has not been so entered."
For example, an unregistered assignment could be required to be entered before restoration. The register is covered in the article on section 67.
Section 62: rights of patentees of restored patents
Sub-section (1): protection of those who started using the invention
"Where a patent is restored, the rights of the patentee shall be subject to such provisions as may be prescribed and to such other provisions as the Controller thinks fit to impose for the protection or compensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, the patented invention between the date when the patent ceased to have effect and the date of the publication of the application for restoration of the patent under this Chapter."
The patentee's rights come back, but with conditions. The window runs from the date of lapse to the date of publication of the restoration application. The persons protected are those who:
- began to use the invention in that window; or
- took definite steps by contract or otherwise to use it.
The protection may take the form of prescribed provisions and "such other provisions as the Controller thinks fit to impose", for "protection or compensation". The text does not define "definite steps" or say what compensation is.
Sub-section (2): no suit for the gap
"No suit or other proceeding shall be commenced or prosecuted in respect of an infringement of a patent committed between the date on which the patent ceased to have effect and the date of publication of the application for restoration of the patent."
The restored patent cannot be used to sue for acts in the gap, whether the suit is started or continued. The bar speaks of "suit or other proceeding", so it is wider than a civil suit.
| Step | Section | Who | Result |
|---|---|---|---|
| Apply within the period in s.60 | 60 | Patentee or representative | Application with verified statement |
| Prima facie view on unintentional lapse and delay | 61(1) | Controller | Publication in prescribed manner |
| Opposition on two grounds | 61(1)(a), (b) | Any person interested | Hearing under 61(2) |
| Restoration on payment | 61(3) | Controller | Patent and specified patents of addition restored |
| Conditions to protect others | 62(1) | Controller | Third parties protected or compensated |
| Gap infringement | 62(2) | Anyone | No suit or proceeding |
Illustration (invented)
Lakshya Foods Ltd. misses a renewal fee because of an accounting error and the patent lapses. It applies for restoration, with a verified statement of the circumstances. The Controller hears Lakshya, is prima facie satisfied that the failure was unintentional and that there was no undue delay, and publishes the application. Spice Route Ltd. gives notice of opposition on the ground of undue delay. The Controller notifies Lakshya and hears both sides, then decides in Lakshya's favour. On payment of the unpaid fee and the additional fee, the patent is restored.
During the gap Spice Route had begun to make the patented product. Under section 62(1) the Controller may impose provisions to protect or compensate Spice Route, and under section 62(2) Lakshya cannot sue for that gap period. Production after publication of the application is a different matter; the text of section 62 does not protect it.
What the sections do not say
- No period for opposition, no form and no fee amounts: all prescribed.
- No definition of "unintentional" or "undue delay".
- No timeline for the Controller's decision.
- No rule on whether use after the date of publication but before restoration is protected; the window in section 62 ends at publication.
Need help restoring a lapsed patent?
Restoration is time-bound and the statement of circumstances matters. Our patent renewal team can prepare the application, deal with any opposition and track your future renewals so the problem does not recur.
Key takeaways
- The Controller publishes a restoration application only if prima facie satisfied that the failure was unintentional and the application was not unduly delayed.
- Opposition is limited to those two grounds.
- Restoration is on payment of the unpaid fee and the prescribed additional fee, and includes specified patents of addition.
- Persons who began or prepared to use the invention in the gap may be protected or compensated.
- No suit or proceeding lies for infringement between lapse and publication.
Read next
- Patent restoration after lapse: section 60 process
- Section 53: term of patent
- Section 63: surrender of patents
- Patent renewal: annual fees and restoration after lapse
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.