Section 85 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 85 lets the Controller revoke a patent for non-working, but only after a compulsory licence has already been granted and two years have passed from the order granting the first compulsory licence. The Central Government or any person interested may apply on three grounds: the invention has not been worked in India, the public's reasonable requirements are not satisfied, or the invention is not available at a reasonably affordable price. The Controller ordinarily decides within one year. If you face or want to bring such an application, our legal dispute resolution team can assist.
Pre-condition: a compulsory licence has been granted. When: after two years from the date of the order granting the first compulsory licence. Who: the Central Government or any person interested. Grounds: not worked in the territory of India, reasonable requirements of the public not satisfied, or not available at a reasonably affordable price. Decision: the Controller may revoke the patent if satisfied, and ordinarily decides within one year of the application.
Where section 85 sits
Section 84 (compulsory licences) has its own post: compulsory licensing under section 84. Section 85 is the next step. If a compulsory licence has not cured the position, the patent itself can be attacked. The general principles in section 83 apply to the exercise of this power; see our article on sections 82 and 83. Section 85 is printed in its current form without footnotes, and the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change it. Procedure for the application is in sections 86 and 87, covered in our article on sections 86 and 87.
Sub-section (1): who may apply, when and why
"Where, in respect of a patent, a compulsory licence has been granted, the Central Government or any person interested may, after the expiration of two years from the date of the order granting the first compulsory licence, apply to the Controller for an order revoking the patent on the ground that the patented invention has not been worked in the territory of India or that reasonable requirements of the public with respect to the patented invention has not been satisfied or that the patented invention is not available to the public at a reasonably affordable price."
| Element | Text |
|---|---|
| Pre-condition | A compulsory licence has been granted in respect of the patent |
| Waiting period | Two years from the date of the order granting the first compulsory licence |
| Applicant | The Central Government or any person interested |
| Forum | The Controller |
| Relief | An order revoking the patent |
| Grounds | (1) not worked in the territory of India; (2) reasonable requirements of the public not satisfied; (3) not available at a reasonably affordable price |
Three details deserve attention:
- The two-year clock starts at the order granting the first compulsory licence, not at the date of grant of the patent and not at a later licence. If several compulsory licences are granted, the first order controls the date.
- The grounds are alternatives ("or"). One is enough.
- "Any person interested" is not defined in this section. Section 2 gives a definition of "person interested" for the Act; this article does not repeat it. The Central Government is named separately and does not need to show an interest.
Drafting point: the printed text of sub-section (1) says "reasonable requirements of the public ... has not been satisfied", using "has" with a plural subject; the sense is the same as in section 84. The words "patented invention" and "worked" follow section 84.
Sub-section (2): contents of the application
"Every application under sub-section (1) shall contain such particulars as may be prescribed, the facts upon which the application is based, and, in the case of an application other than by the Central Government, shall also set out the nature of the applicant's interest."
- Prescribed particulars: set by the Patents Rules, 2003, not stated here.
- Facts: the facts on which the application is based must be stated. A bare allegation is not enough.
- Nature of interest: every applicant other than the Central Government must set out the nature of his interest.
Sub-section (3): the Controller's power
"The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that patented invention have not been worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price, may make an order revoking the patent."
The Controller must be "satisfied" on one of the grounds. Even then, he "may" revoke; revocation is discretionary. The text does not say what he should weigh, but section 83's general principles apply. Note also that the three grounds in sub-section (3) are listed in a different order from sub-section (1); they are the same three grounds.
Sub-section (4): one-year target
"Every application under sub-section (1) shall ordinarily be decided within one year of its being presented to the Controller." The word "ordinarily" makes this a target and not a fixed limit; the text states no consequence of delay.
How section 85 differs from other routes to end a patent
| Route | Who starts it | Forum | Basis |
|---|---|---|---|
| Section 63 surrender | Patentee | Controller | Patentee's own offer |
| Section 64 revocation | Petitioner under section 64 (including the Central Government under 64(4)) | High Court | Grounds in section 64 (see our post on section 64) |
| Section 65 | Central Government directs | Controller | Atomic energy |
| Section 66 | Central Government | Gazette declaration | Mischievous to the State or prejudicial to the public |
| Section 85 | Central Government or any person interested | Controller | Non-working, public requirements not met, unaffordable price; after a compulsory licence |
For the grounds of revocation by a court, see our post on revocation grounds under section 64.
Illustration (invented)
Vandana Therapeutics Ltd. holds an Indian patent for an anti-malarial formulation. On 1 March in Year 4, the Controller grants Rapid Pharma Pvt. Ltd. a compulsory licence under section 84 on the ground that the invention was not available at a reasonably affordable price. Two years later, the patented invention is still not worked in India by Vandana, and its price remains out of reach for public hospitals.
On or after 1 March in Year 6, the Central Government or any person interested, such as a hospital trust, may apply under section 85(1) for an order revoking the patent. The application sets out the prescribed particulars and the facts, and, for the trust, the nature of its interest. After hearing both sides under section 87, the Controller, if satisfied on any of the three grounds, may revoke the patent. The Controller should ordinarily decide within one year of the application.
What the section does not say
- It does not say that the first compulsory licence must have been granted under section 84; it says "a compulsory licence has been granted". Compulsory licences under section 92 and 92A are separate provisions.
- It does not define "worked", "reasonable requirements" or "reasonably affordable"; sections 84(7) and 83 give guidance elsewhere.
- It does not say what happens to existing compulsory licences after revocation.
- It does not state costs or fees.
Need help with a non-working application?
A section 85 application needs precise facts, the right ground and compliance with the waiting period. Our legal dispute resolution team can prepare your application or your defence and appear before the Controller.
Key takeaways
- Revocation under section 85 needs an earlier compulsory licence and a wait of two years from the order granting the first such licence.
- The Central Government or any person interested may apply.
- The grounds are non-working in India, unmet public requirements or no reasonably affordable price.
- The Controller may revoke if satisfied, and ordinarily decides within one year.
Read next
- Sections 86 and 87: adjournment and procedure for compulsory licence applications
- Sections 82 and 83: patented articles and general principles applicable to working
- Compulsory licensing of patents: section 84
- Revocation of patent: grounds and process
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.