IP Intelligence › Real Scenarios › The national phase that slipped
Real-life scenario · fictionalised
The national phase that slipped
A European applicant files a PCT application with a priority date of 2 February 2024. India is one of eight planned national phase entries. The instructing firm changes its docketing system in late 2025. India is entered on the new system with a thirty-month date rather than thirty-one, then corrected, then - during a handover - dropped. The omission is noticed in November 2026.
How bad is it?
The deadline
Indian national phase entry is thirty-one months from the priority date under rule 20(4)(i). From 2 February 2024, that is around 2 September 2026. If nothing was filed, the international application is treated as withdrawn so far as India is concerned.
There is a genuine legal debate about whether the general extension power rewritten in 2024 can reach this deadline. The Patent Office has been reported as not accepting that it does, and recent Delhi High Court authority has treated national phase timelines as mandatory and non-extendable, including where the delay was caused by a patent agent.
What that means practically
Take advice immediately and on the specific facts - the position is contested and the dates matter. But do not plan on a cure, and do not tell the client one exists.
Meanwhile the PCT application published long ago, so refiling in India is not available for the same subject matter: the applicant's own publication is prior art against it.
What should have happened
- Docketed thirty-one months for India specifically, not a global thirty-month default.
- Run a reconciliation of all PCT cases against the old and new docketing systems after migration.
- Set a twenty-eight month checkpoint on every PCT case, so a missed entry surfaces while there is still time.
- Confirmed instructions in writing at the checkpoint, rather than at the deadline.
Docketing migrations and file handovers destroy more patent rights in India than any argument ever does.
This scenario is a composite teaching example written by Ragulika IP. It does not describe any real client, application or matter, and any resemblance to a specific case is coincidental.
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.
Patent deadlines can always be extended if you pay.
Some can. Several of the most important cannot, or their extendability is unsettled - and an application that misses one is simply treated as abandoned or withdrawn.
Not sure whether this applies to your invention?
The honest answer usually needs someone to look at your actual disclosure, your timeline and the prior art. That is a conversation, not an article.
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.