The High Court of Calcutta’s Interpretation of Patent Term Calculation in India

On May 7, 2024, in the matter of Gunjan Sinha v. The Union of India (WPA No. 8691 of 2023), the High Court of Calcutta delivered a detailed verdict that upholds the constitutionality of Section 53 of the Indian Patents Act, 1970 (as amended in 2002) (hereinafter, “the Act”) and reaffirms the integrity of the Act with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). This judgment, while affirming existing legal frameworks, also illuminates the legislative and judicial thought processes behind patent law enforcement in India.


The petitioner in this case challenged the vires of Section 53(1) in view of Section 11-A(7) of the Act.

Section 53(1) of the Act provides, “Subject to the provisions of this Act, the term of every patent granted, after the commencement of the Patents (Amendment) Act, 2002, and the term of every patent which has not expired and has not ceased to have effect, on the date of such commencement, under this Act, shall be twenty years from the date of filing of the application for the patent.

On the other hand, Section 11A(7) of the Act provides, “On and from the date of publication of the application for patent and until the date of grant of a patent in respect of such application, the applicant shall have the like privileges and rights as if a patent for the invention had been granted on the date of publication of the application: Provided that the applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted; Provided further that the rights of a patentee in respect of applications made under sub-section (2) of section 5 before the 1st day of January, 2005 shall accrue from the date of grant of the patent: Provided also that after a patent is granted in respect of applications made under sub-section (2) of section 5, the patent-holder shall only be entitled to receive reasonable royalty from such enterprises which have made significant investment and were producing and marketing the concerned product prior to the 1st day of January, 2005 and which continue to manufacture the product covered by the patent on the date of grant of the patent and no infringement proceedings shall be instituted against such enterprises.”

The petitioner contested that there is a contradiction within the Patents Act itself, particularly between Section 53 and Section 11-A. Section 53 stipulates that the term of a patent is twenty years from the date of filing the application. In contrast, Section 11-A(7) allows the patent applicant certain provisional rights from the date of publication of the patent application until the grant of the patent, but not including the right to sue for infringement.

The petitioner argued that the patentee does not enjoy the rights of the patent from the date of application till its publication at all, whereas other rights apart from the right to institute proceedings for infringement are conferred between the date and publication and the grant of the patent. Hence, it was argued that it is unreasonable that the term of the patent is to be

counted from the date of the application, whereas during the period between the application and the publication only limited rights are conferred, and full rights are conferred only upon grant.


The single judge bench of the High Court of Calcutta noted that these provisions, while seemingly at odds in terms of rights activation, do not actually conflict when considering the legislative intent to both incentivize early disclosure of inventions and align with international standards that mandate a fixed patent term starting from the filing date. Here are the key takeaways from the court’s reasoning:

Compliance with the TRIPS Agreement

Article 33 of TRIPS stipulates that the patent protection must last at least 20 years from the filing date. The court emphasized that Section 53 is crafted to comply with this requirement, illustrating India’s commitment to its international obligations.

The court rejected the petitioner’s contention that the patent term should start from the grant date, noting that such an interpretation would misalign Indian patent law with international standards and create uncertainty about the duration of protection.

No Inherent Contradiction

The court analyzed Section 53 and Section 11-A(7) not as conflicting but as complementary. Section 53 provides a fixed timeline for patent protection starting from the application date, promoting certainty and uniformity in the patent regime. Section 11-A(7), on the other hand, is designed to protect the inventor’s interests from the time the patent application is published until its grant. It offers provisional rights that are akin to having a granted patent, which helps prevent the misuse or theft of the invention during this vulnerable period. These rights are carefully limited to avoid overreach before the patent office has fully evaluated the patent application.

In the court’s view, there is no inherent contradiction between the two sections because each section operates at a different stage of the patent process and serves distinct yet harmonized purposes. Section 53 addresses the overall term of patent protection, ensuring compliance with international norms, while Section 11-A(7) provides interim protection, reflecting a nuanced understanding of the patenting process and the practical needs of applicants.

Judicial Review and Legislative Wisdom

The judiciary generally exercises restraint in interfering with legislative decisions unless there is a clear violation of fundamental rights or evidence of arbitrariness.

In this case, the court found that the legislative choice to start the patent term from the filing date was neither arbitrary nor unreasonable. It reflected a considered balance between the patentee’s rights and public interest.

The court further noted that any alteration in the legislative scheme regarding the patent term would require a balancing of complex interests, including those of the public, inventors, and international treaty obligations. Such decisions are typically within the purview of the legislature, not the judiciary.

The court’s decision to uphold the vires of Section 53 of the Patents Act, affirming its constitutionality, is a significant affirmation of India’s commitment to international treaties and its own legislative framework for intellectual property. This judgment not only clarifies the statute’s provisions but also reinforces the stability and predictability of patent law in India, crucial for both domestic and international inventors and investors.


The High Court of Calcutta decisively held that the patent term provision under Section 53 is constitutional, rational, and in line with both domestic policy objectives and international commitments. The court acknowledged that while the rights granted under Section 11-A are limited during the pre-grant period, they are intended to provide a temporary safeguard for the applicant’s invention, without prematurely granting full patent rights that could potentially stifle competition or innovation.

By elucidating these aspects, the High Court of Calcutta clarified that Sections 53 and 11-A(7) are not mutually exclusive but rather operate in tandem to provide a comprehensive legal framework for patent protection.

Our Analysis

The court’s decision reinforces India’s commitment to the TRIPS Agreement, ensuring a minimum 20-year patent term from the filing date. This fosters international harmonization and predictability for patent holders, potentially attracting foreign investment and technology transfer to India.

However, the emphasis on international harmonization might be seen as prioritizing the interests of foreign corporations with greater resources to navigate the patenting process. Domestic inventors, especially small entities or individuals might struggle to compete or enforce their rights during the pre-grant period with limited resources.

Critics might even argue that the provisional rights offered under Section 11-A(7) are insufficient to truly protect an invention during the pre-grant period. This could leave inventors vulnerable to misappropriation of their ideas, particularly for inventions with a short commercial shelf life.

While the court has upheld the status quo, the arguments raised by the petitioner regarding the limited pre-grant rights could pave the way for future legal challenges or legislative amendments aimed at revising the scope of provisional rights granted during the patent application process.


In essence, the Calcutta High Court’s judgment upholds a patent regime that promotes international harmonization, protects inventor interests, and fosters a predictable legal environment. It lays the groundwork for further discussions on optimizing India’s patent system for the future. While the court has upheld the current framework, it is important to acknowledge the ongoing discussions around patent law reform in India that favors incentivizing innovation while ensuring access to affordable technologies.

Subscribe To Our Newsletter

Reach us at