Legal position on ‘proof of right’ in patent applications

The requirement for filing a “proof of right” with Indian patent applications is debated from time to time and patent controllers have taken different views on it.

The guiding principle for all types of patent applications, whether ordinary applications, convention applications, or national phase applications based on the Patent Cooperation Treaty (PCT), emerges from the provisions of section 7(2) of the Indian Patents Act, 1970.

According to this provision, if the applicant has obtained the rights of invention from the “true and first inventors”, a proof of right is required to be submitted to the Indian Patent Office along with the application, or within six months (as prescribed by rule 10 of the Indian Patents Rules, 2003). Rule 10 provides that in the case of an application under the national phase of PCT, the six months shall be counted from the actual date on which the entry was made in India.

Abhai Pandey and Rajeev Kumar are partners at LexOrbis.