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The case that closed the door on late national phase entry
Delhi High Court · 2026 · C.A.(COMM.IPD-PAT) 5/2025, decided 18 May 2026
What happened
A PCT applicant missed the Indian national phase deadline, and then tried to bring the filing back within time by amending the priority date - disclaiming the earliest priority so that the thirty-one months would be measured from a later one.
What the fight was about
Whether the national phase timeline is mandatory, whether it runs from the earliest priority in a multi-priority family, and whether a later amendment can revive an application already deemed withdrawn.
What the court decided
The timelines under rule 20(4)(i), rule 22 and rule 24B(1)(i) are mandatory and non-extendable. Where multiple priorities are claimed, the thirty-one month period runs from the earliest priority date. A post-facto amendment of the priority date under section 57(5) cannot be used to revive an application already deemed withdrawn by operation of law. The Court declined to excuse the delay on the basis of patent agent error. The appeal was dismissed.
Why an inventor should care
If your international application does not enter India in time, there is no realistic second chance - and the reason will not matter.
What a patent professional should take from it
Compute the thirty-one months from the earliest priority in the family, never the latest. Docket it independently of the foreign agent. Set a twenty-eight month checkpoint. And do not tell a client that the extension power rewritten in 2024 will rescue it - the position is contested and this decision points the other way.
Thirty-one months from the earliest priority. Treat it as absolute.
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This is an editorial case note prepared by Ragulika IP - a summary of a decision, not the text of the judgment, and not authority. Read the judgment itself before relying on any point.
Sources & further reading
- The Patents Rules, 2003, as amended (e-version updated to 15 March 2024) — Official IP India text
- The Patents (Amendment) Rules, 2024 - G.S.R. 211(E), 15 March 2024 — Gazette text via WIPO Lex
Related
The thirty-one months that ended the case
If a PCT application does not enter the Indian national phase within thirty-one months of the priority date, it is treated as withdrawn so far as India is concerned.…
National phase
The stage at which a PCT application is taken into an individual country's system. In India the time limit is thirty-one months from the priority date.
The national phase that slipped
How bad is it?
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Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.