Sections 86 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 87 sets the procedure for applications under section 84 (compulsory licence) and section 85 (revocation for non-working): a prima facie case first, then service on the patentee and registered interested persons, publication in the official journal, notice of opposition and a hearing. Section 86 lets the Controller adjourn a non-working application for up to twelve months in total where the time since the patent has been too short for adequate working, but only if the patentee has acted with promptitude. If you are on either side of such an application, our legal dispute resolution team can represent you.
s.87: if the Controller is satisfied on a prima facie case, he directs the applicant to serve copies on the patentee and any registered interested person, and publishes the application in the official journal. The patentee or any other person may file a notice of opposition with a statement of grounds within the prescribed time (extendable on application), and the Controller hears both sides. s.86: for non-working grounds he may adjourn for up to twelve months in the aggregate if the time since the patent is insufficient, but only if the patentee has taken adequate steps with promptitude.
Amendments to know
In section 87(1) the words "shall publish the application in the official journal" replaced "shall advertise the application in the Official Gazette" under the Patents (Amendment) Act, 2005 (from 1 January 2005). Sections 86 and 87 otherwise stand as printed in the 2002 re-casting of Chapter XVI. The Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change them. The principal applications are those under section 84 for a compulsory licence and under section 85 for revocation.
Section 87: procedure
Sub-section (1): prima facie case, service and publication
"Where the Controller is satisfied, upon consideration of an application under section 84, or section 85, that a prima facie case has been made out for the making of an order, he shall direct the applicant to serve copies of the application upon the patentee and any other person appearing from the register to be interested in the patent in respect of which the application is made, and shall publish the application in the official journal."
Steps in order:
- The Controller considers the application.
- If satisfied that a prima facie case is made out for the making of an order, he:
- directs the applicant to serve copies on the patentee and any other person appearing from the register to be interested; and
- publishes the application in the official journal.
If he is not satisfied, the text does not provide for service or publication. The register is described in our article on section 67.
Sub-section (2): notice of opposition
"The patentee or any other person desiring to oppose the application may within such time as may be prescribed or within such further time as the Controller may on application (made either before or after the expiration of the prescribed time) allow, give to the Controller notice of opposition."
The time is prescribed by the Rules and not stated in the Act. The Controller may allow further time on application, and the application for more time may be made before or after the prescribed time has run out.
Sub-section (3): contents
"Any such notice of opposition shall contain a statement setting out the grounds on which the application is opposed."
Sub-section (4): hearing
"Where any such notice of opposition is duly given, the Controller shall notify the applicant, and shall give to the applicant and the opponent an opportunity to be heard before deciding the case."
| Step | Provision | Who acts |
|---|---|---|
| Prima facie view | 87(1) | Controller |
| Service of copies | 87(1) | Applicant, on Controller's direction |
| Publication | 87(1) | Controller, in the official journal |
| Notice of opposition with grounds | 87(2), (3) | Patentee or any other person |
| Further time for opposition | 87(2) | Controller, on application |
| Notice to applicant and hearing | 87(4) | Controller |
Section 86: adjournment for non-working
Sub-section (1): the power to adjourn
"Where an application under section 84 or section 85, as the case may be, is made on the grounds that the patented invention has not been worked in the territory of India or on the ground mentioned in clause (d) of sub-section (7) of section 84 and the Controller is satisfied that the time which has elapsed since the sealing of the patent has for any reason been insufficient to enable the invention to be worked on a commercial scale to an adequate extent or to enable the invention to be so worked to the fullest extent that is reasonably practicable, he may, by order, adjourn the further hearing of the application for such period not exceeding twelve months in the aggregate as appears to him to be sufficient for the invention to be so worked."
- Applies to: applications under section 84 or section 85 on the ground of non-working in India, or on the ground in section 84(7)(d) (invention not being worked on a commercial scale to an adequate extent, or not to the fullest extent reasonably practicable).
- Condition: the Controller is satisfied that the time since the sealing of the patent has "for any reason" been insufficient for adequate working.
- Power: he "may, by order, adjourn the further hearing" for a period "not exceeding twelve months in the aggregate".
Drafting point: this section speaks of "sealing of the patent". Section 84(1) was changed in 2005 so that the three-year period runs from the date of grant, but "sealing" remains in sections 84(6)(i), 86 and 91(1). The text gives no separate definition; read it with that in mind.
Proviso: delay due to law or Government order
If the patentee shows that the reason why the invention could not be worked before the date of the application was "due to any State or Central Act or any rule or regulation made thereunder or any order of the Government" imposed otherwise than as a condition for working the invention in India or for disposal of the patented articles, then the adjournment period is reckoned from the date on which the period of prevention, "as computed from the date of the application", expires. The effect is that the twelve-month adjournment starts after the legal obstacle ends.
Sub-section (2): adequate and prompt steps
"No adjournment under sub-section (1) shall be ordered unless the Controller is satisfied that the patentee has taken with promptitude adequate or reasonable steps to start the working of the invention in the territory of India on a commercial scale and to an adequate extent." The patentee must show prompt, adequate steps. A patentee who has done nothing cannot obtain an adjournment under this section.
Illustration (invented)
Pioneer Devices Ltd. holds a patent for a portable water tester. Shalini Labs applies under section 84 on the ground that the invention is not worked in India. At the prima facie stage the Controller is satisfied, directs Shalini to serve copies on Pioneer and on a licensee shown in the register, and publishes the application in the official journal. Pioneer files a notice of opposition within the prescribed time, stating its grounds, and the Controller notifies Shalini and gives both a hearing.
Pioneer shows that it began setting up a plant soon after grant, and that an import-licence order of Government delayed the equipment. If the Controller is satisfied that the time since the patent has been insufficient, and that Pioneer took adequate steps with promptitude, he may adjourn the further hearing for up to twelve months in the aggregate, reckoned under the proviso from the end of the period of the legal obstacle. If Pioneer had done nothing, section 86(2) bars an adjournment.
What the sections do not say
- No time for opposition, no form, no fee: all prescribed.
- No definition of "prima facie case" or "adequate extent".
- No standard of costs.
- No rule on whether section 86 adjournments may be refused when the patent has been in force for long; the text asks only about time that "has for any reason been insufficient".
- The provisions on the Controller's powers to grant a licence follow in section 88, covered in our article on sections 88 and 89.
Need help in a compulsory licence proceeding?
The stages are tight and the paper trail matters. Our legal dispute resolution team can prepare the application or the notice of opposition, argue for or against an adjournment and appear at the hearing.
Key takeaways
- The Controller first needs a prima facie case; then service, publication and an opportunity to oppose.
- The notice of opposition must state the grounds and be filed within the prescribed time, extendable on application.
- The Controller must hear the applicant and the opponent.
- On non-working grounds he may adjourn for up to twelve months in aggregate if the time since the patent has been insufficient and the patentee has acted with promptitude.
Read next
- Sections 88 and 89: Controller's powers and general purposes of compulsory licences
- Sections 90 and 91: terms of compulsory licences and licensing of related patents
- Section 85: revocation of patents by the Controller for non-working
- Working of patent in India: section 83 and Form 27
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.