Sections 88 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 88 gives the Controller four extra powers when he deals with a compulsory licence application under section 84: extend licences to the applicant's customers where tie-in conditions hurt trade in unprotected materials, cancel or amend an existing licence held by the applicant, bring in other patents of the same patentee, and revise the terms of a licence once it proves too onerous. Section 89 states the two purposes that guide all of the Controller's powers on a section 84 application. If you are applying for or defending against a compulsory licence, our legal dispute resolution team can advise.
On a section 84 application, the Controller may (1) order licences to customers of the applicant where the patentee's conditions prejudice trade in materials not protected by the patent; (2) cancel or amend an existing licence of an applicant who is already a licensee; (3) extend the licence to other patents of the same patentee if the applicant cannot work the first without infringing them; and (4) revise the terms once, after twelve months of commercial working, if the terms prove more onerous than expected (s.88). Section 89 says the powers must secure working on a commercial scale in India and that persons working or developing an invention are not unfairly prejudiced.
Amendments to know
Sections 88 and 89 are printed without footnotes inside the Chapter XVI recast by the Patents (Amendment) Act, 2002 (from 20 May 2003). The Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023 did not change them. Section 84(5) says that where the Controller directs the patentee to grant a licence, he may, as incidental to it, exercise the powers set out in section 88; see our post on compulsory licensing under section 84. Procedure is in sections 86 and 87; see our article on sections 86 and 87.
Section 88: powers of the Controller
Sub-section (1): licences to customers
"Where the Controller is satisfied on an application made under section 84 that the manufacture, use or sale of materials not protected by the patent is prejudiced by reason of conditions imposed by the patentee upon the grant of licences under the patent, or upon the purchase, hire or use of the patented article or process, he may, subject to the provisions of that section, order the grant of licences under the patent to such customers of the applicant as he thinks fit as well as to the applicant."
This deals with tying conditions: the patentee insists that licensees or buyers also buy unpatented materials from him. If that prejudices manufacture, use or sale of materials not protected by the patent, the Controller may extend the licence to customers of the applicant as he thinks fit, in addition to the applicant. The power operates "subject to the provisions of" section 84.
Sub-section (2): existing licensee as applicant
"Where an application under section 84 is made by a person being the holder of a licence under the patent, the Controller may, if he makes an order for the grant of a licence to the applicant, order the existing licence to be cancelled, or may, if he thinks fit, instead of making an order for the grant of a licence to the applicant, order the existing licence to be amended."
Section 84(2) lets a licensee apply and says he is not estopped by admissions made in the licence. Sub-section (2) of section 88 allows two outcomes: grant to the applicant and cancel the old licence, or amend the old licence instead of granting a new one.
Sub-section (3): related patents of the same patentee
"Where two or more patents are held by the same patentee and an applicant for a compulsory licence establishes that the reasonable requirements of the public have not been satisfied with respect to some only of the said patents, then, if the Controller is satisfied that the applicant cannot efficiently or satisfactorily work the licence granted to him under those patents without infringing the other patents held by the patentee and if those patents involve important technical advancement or considerable economic significance in relation to the other patents, he may, by order, direct the grant of a licence in respect of the other patents also to enable the licensee to work the patent or patents in regard to which a licence is granted under section 84."
Conditions, all needed:
- Two or more patents are held by the same patentee.
- The applicant shows the public's reasonable requirements are not satisfied for some only of them.
- The Controller is satisfied that the applicant cannot efficiently or satisfactorily work the licence without infringing the other patents.
- Those other patents involve important technical advancement or considerable economic significance in relation to the other patents.
Then he "may" direct a licence of the other patents too. Do not confuse this with section 91, which deals with licences of related patents on an application by a person who holds another patented invention; see our later article on sections 90 and 91.
Sub-section (4): revision of terms
"Where the terms and conditions of a licence have been settled by the Controller, the licensee may, at any time after he has worked the invention on a commercial scale for a period of not less than twelve months, make an application to the Controller for the revision of the terms and conditions on the ground that the terms and conditions settled have proved to be more onerous than originally expected and that in consequence thereof the licensee is unable to work the invention except at a loss:
Provided that no such application shall be entertained a second time."
- Who: the licensee under terms settled by the Controller.
- When: after commercial working for not less than twelve months.
- Ground: terms are more onerous than expected, and as a consequence the licensee cannot work the invention except at a loss.
- Limit: one application only; no second application is entertained.
| Power | Provision | Condition |
|---|---|---|
| Licences to the applicant's customers | 88(1) | Patentee's conditions prejudice trade in unprotected materials |
| Cancel or amend an existing licence | 88(2) | Applicant already holds a licence under the patent |
| Licence of other patents of the same patentee | 88(3) | Cannot work without infringing; important advancement or considerable economic significance |
| Revision of terms | 88(4) | After 12 months of commercial working; working only at a loss; one application only |
Section 89: general purposes
"The powers of the Controller upon an application made under section 84 shall be exercised with a view to securing the following general purposes, that is to say,—
- (a) that patented inventions are worked on a commercial scale in the territory of India without undue delay and to the fullest extent that is reasonably practicable;
- (b) that the interests of any person for the time being working or developing an invention in the territory of India under the protection of a patent are not unfairly prejudiced."
Clause (a) echoes section 83(a): working in India on a commercial scale. Clause (b) protects the person working or developing an invention under the protection of a patent: a compulsory licence should not unfairly prejudice that person's interests. The text does not say how the two purposes are balanced against each other.
Illustration (invented)
Gaurav Dyes Ltd. holds a patent for an industrial dyeing method and requires every licensee to buy a fixing chemical, which is not covered by the patent, only from Gaurav. Textile maker Anand Mills applies under section 84. If the Controller is satisfied that the manufacture and sale of fixing chemicals is prejudiced by these conditions, he may order licences to Anand's customers as he thinks fit, as well as to Anand (section 88(1)).
Anand already holds a licence under the patent. The Controller may order the existing licence cancelled if he grants Anand a new licence, or amend it instead (section 88(2)).
Gaurav holds a second patent for a dye stabiliser without which Anand cannot work the first patent efficiently. If the second patent involves important technical advancement or considerable economic significance in relation to the other, the Controller may direct a licence of both (section 88(3)).
After thirteen months of working, Anand finds the settled royalty makes the business loss-making. It may apply once for revision under section 88(4). It cannot apply a second time.
What the sections do not say
- No time limits other than the twelve months in section 88(4), and no figures for royalty.
- No definition of "materials not protected by the patent" or "customers of the applicant".
- No criteria for the Controller's discretion under sub-sections (1) to (3), beyond the conditions stated.
- No rule on whether the Controller may revise upwards.
Need help with the Controller's compulsory licence powers?
Each power has conditions and each can be argued either way. Our legal dispute resolution team can map your case to the right sub-section, prepare the evidence and appear before the Controller.
Key takeaways
- Section 88 gives the Controller four powers on a section 84 application: customer licences, cancelling or amending an existing licence, licences of other patents of the same patentee, and one-time revision of terms.
- Revision is open after twelve months of commercial working and only once.
- Section 89 directs the Controller to secure working in India on a commercial scale and to avoid unfair prejudice to those working or developing inventions.
Read next
- Sections 90 and 91: terms of compulsory licences and licensing of related patents
- Sections 86 and 87: adjournment and procedure for compulsory licence applications
- Compulsory licensing of patents: section 84
- Patent licence agreement: draft template
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.