Sections 90 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 90 tells the Controller what terms to aim for when he settles a compulsory licence under section 84: reasonable royalty, full working at a reasonable profit, affordable prices, a non-exclusive and non-assignable licence for the balance of the patent term, a predominantly Indian-market supply, public non-commercial use for semiconductor technology, and limits on import. Section 91 lets the holder of one patented invention get a licence of another patent if he is prevented or hindered from working his own. If you need a licence or must negotiate its terms, our legal dispute resolution team can advise.
In settling a section 84 licence the Controller shall endeavour to secure nine things (s.90(1)(i) to (ix)), including a reasonable royalty, affordable prices, a non-exclusive and non-assignable licence for the balance term, and no importation that would infringe, unless the Central Government directs otherwise in the public interest (s.90(2), (3)). Under s.91, a person who works another patented invention may apply for a licence of a related patent if he is prevented or hindered from working his own invention efficiently, subject to two conditions, and any licence is non-assignable except with the patents.
Amendments to know
Section 90(1)(vii) to (ix) was substituted by the Patents (Amendment) Act, 2005 (from 1 January 2005), replacing the earlier clause (vii). The rest of the two sections stands as printed in the Chapter XVI recast by the 2002 Act. The Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change them. These terms apply to licences under section 84; see our post on compulsory licensing under section 84.
Section 90: terms and conditions
Sub-section (1): what the Controller shall endeavour to secure
"In settling the terms and conditions of a licence under section 84, the Controller shall endeavour to secure—"
| Clause | The Controller shall endeavour to secure |
|---|---|
| (i) | That the royalty and other remuneration, if any, reserved to the patentee or other person beneficially entitled is reasonable, having regard to the nature of the invention, the expenditure incurred by the patentee in making or developing it, obtaining a patent and keeping it in force, and other relevant factors |
| (ii) | That the invention is worked to the fullest extent by the licensee and with reasonable profit to him |
| (iii) | That the patented articles are available to the public at reasonably affordable prices |
| (iv) | That the licence is non-exclusive |
| (v) | That the right of the licensee is non-assignable |
| (vi) | That the licence is for the balance term of the patent, unless a shorter term is consistent with public interest |
| (vii) | That the licence is granted with a predominant purpose of supply in the Indian market, and the licensee may also export the patented product, if need be, in accordance with section 84(7)(a)(iii) |
| (viii) | In the case of semi-conductor technology, that the licence is to work the invention for public non-commercial use |
| (ix) | Where the licence is granted to remedy a practice determined after judicial or administrative process to be anti-competitive, that the licensee be permitted to export the patented product, if need be |
The verb is "endeavour to secure": the Controller must try, but the section does not make every item a rigid condition. Where the wording of an item is conditional, such as "if need be" or "unless a shorter term is consistent with public interest", the Controller has room.
Note two features. First, clause (i) names factors for the royalty (nature of the invention, the patentee's expenditure on making, developing, patenting and maintaining it, and other relevant factors) but gives no percentage. Second, clause (vii) cross-refers to the export market ground in section 84(7)(a)(iii), where the market for export of the patented article manufactured in India is not being supplied or developed.
Sub-section (2): no import that would infringe
"No licence granted by the Controller shall authorise the licensee to import the patented article or an article or substance made by a patented process from abroad where such importation would, but for such authorisation, constitute an infringement of the rights of the patentee." A compulsory licence is to work the patent in India; it does not by itself allow importing the patented product.
Sub-section (3): Government direction to allow import
"Notwithstanding anything contained in sub-section (2), the Central Government may, if in its opinion it is necessary so to do, in the public interest, direct the Controller at any time to authorise any licensee in respect of a patent to import the patented article or an article or substance made by a patented process from abroad (subject to such conditions as it considers necessary to impose relating among other matters to the royalty and other remuneration, if any, payable to the patentee, the quantum of import, the sale price of the imported article and the period of importation), and thereupon the Controller shall give effect to the directions."
Here the Central Government, not the Controller, decides. It acts on its opinion that it is necessary in the public interest, may impose conditions on royalty, quantum, sale price and period of importation, and the Controller "shall give effect".
Section 91: licensing of related patents
Sub-section (1): who may apply and why
"Notwithstanding anything contained in the other provisions of this Chapter, at any time after the sealing of a patent, any person who has the right to work any other patented invention either as patentee or as licensee thereof, exclusive or otherwise, may apply to the Controller for the grant of a licence of the first-mentioned patent on the ground that he is prevented or hindered without such licence from working the other invention efficiently" or to the most advantageous extent possible (paraphrased here; the Act's closing words are a short phrase on the same point). The applicant can be a patentee or a licensee, exclusive or not, of the other invention. "Sealing" is the word printed here, as in section 86.
Sub-section (2): two conditions
No order shall be made unless the Controller is satisfied:
- (i) that the applicant is able and willing to grant, or procure the grant to the patentee and his licensees if they so desire, of a licence in respect of the other invention on reasonable terms; and
- (ii) that the other invention has made a substantial contribution to the establishment or development of commercial or industrial activities in the territory of India.
This is a cross-licence. The applicant must be ready to license his own invention back on reasonable terms, and his invention must have made a substantial contribution in India.
Sub-section (3): the order
When satisfied that the conditions in sub-section (1) are established, the Controller "may make an order on such terms as he thinks fit granting a licence under the first-mentioned patent and a similar order under the other patent if so requested by the proprietor of the first-mentioned patent or his licensee". The proviso: the licence "shall be non-assignable except with the assignment of the respective patents".
Sub-section (4): borrowing the procedure
"The provisions of sections 87, 88, 89 and 90 shall apply to licences granted under this section as they apply to licences granted under section 84." Procedure (section 87), powers (section 88), purposes (section 89) and terms (section 90) are therefore carried over. See our articles on sections 86 and 87 and sections 88 and 89.
Illustration (invented)
Zephyr Turbines Ltd. holds patent A for an improved wind turbine blade, and a smaller firm, Breeze Tech LLP, holds patent B for a gearbox. Breeze cannot work its gearbox efficiently without a licence under patent A. Breeze applies under section 91. It shows that it is able and willing to license patent B back to Zephyr and its licensees on reasonable terms, and that patent B has made a substantial contribution to industrial activity in India. The Controller may grant a licence under patent A and, if Zephyr asks, a similar one under patent B. The licence is non-assignable except with the assignment of the respective patents.
In a separate matter, the Controller settles a section 84 licence for another patent. He aims for a reasonable royalty, a non-exclusive and non-assignable licence for the balance of the term and supply in the Indian market. The licence does not allow importing the patented product unless the Central Government directs so under section 90(3).
What the sections do not say
- No royalty rate, percentage or sum.
- No definition of "reasonable", "affordable" or "substantial contribution".
- No stated duration for import directions beyond what the Central Government sets.
- Section 91 has no stated time limit; it speaks of "at any time after the sealing".
- No guidance on how conflicts among the nine aims are resolved.
Need help negotiating or challenging licence terms?
Royalty, price and exclusivity terms decide whether a compulsory licence is workable. Our legal dispute resolution team can prepare evidence on royalty and pricing, address import and export points, and appear before the Controller.
Key takeaways
- The Controller shall endeavour to secure nine aims in settling a section 84 licence: reasonable royalty, working with reasonable profit, affordable prices, non-exclusive and non-assignable, balance of term, Indian market supply, semiconductor public non-commercial use and export for anti-competitive remedies.
- A compulsory licence does not by itself allow import that would infringe; the Central Government may direct otherwise in the public interest.
- Section 91 lets the holder of another patented invention seek a licence of a related patent, if prevented or hindered and if two conditions are met.
Read next
- Section 92: compulsory licence on Central Government notification
- Section 92A: compulsory licence for export of patented pharmaceutical products
- Compulsory licensing of patents: section 84
- Patent assignment vs licence: key differences
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.