An application for a patent can be made by the inventor, or by someone the inventor has assigned the invention to, or by the inventor’s legal representative. Where the applicant is not the inventor — a company applying for its employee’s invention, a university for its researcher’s, a parent for its subsidiary’s — the Patent Office wants to see how the applicant came by the right. That is proof of right, and it has a deadline that is easy to miss and cheap to meet.
Quick reference
| Who needs it | Any applicant who is not the inventor, or not the only inventor |
| What satisfies it | The inventor’s signed declaration on Form 1 — or an assignment, or other evidence of title |
| Deadline | With the application, or within six months of filing |
| Extension | Available on request under the Controller’s general power, with a fee |
| If missed | The examiner raises it; a petition to condone the delay is needed; grant is withheld until it is met |
| PCT national phase | Same rule, six months from entry |
What it is
The Act allows an application to be made by the true and first inventor, by an assignee of the inventor, or by the inventor’s legal representative. Where the applicant claims as assignee or legal representative, the application must be accompanied by proof of the right to make it.
The point is to protect inventors from having their inventions applied for by others without their agreement, and to make sure the person named on the patent is the person entitled to it. It is a formal requirement, but a patent cannot be granted until it is met.
What counts as proof
The declaration on Form 1. The application form has a section headed “Declaration by the inventor(s)”, in which each inventor signs a statement that the applicant is their assignee or legal representative. An application form signed there by every inventor is, on its own, sufficient proof of right. This is the route most applicants use, because it needs no separate document and no further evidence.
An assignment. Where the inventors cannot or will not sign the form — they have left, they are abroad, the company’s processes route through an assignment deed — a copy of the assignment from the inventors to the applicant serves. The document should name the invention with enough particularity to be matched to the application.
Other evidence of title. An employment contract vesting inventions in the employer, a court order, a certificate of succession for a legal representative. The Office accepts what establishes the chain from inventor to applicant.
Where the applicant is the inventor, or the applicants are all the inventors, no proof of right is needed. Where some applicants are inventors and some are not, it is needed for the non-inventors’ share.
The deadline
Proof of right is to be filed with the application, or within six months of the filing date. For a PCT national phase entry, the six months runs from the date of entry.
The period can be extended under the Controller’s general power to extend time, on a request with the fee. Since March 2024 that power runs to six months in all; before the amendment it was limited to one month for this purpose, and guidance quoting one month describes the old position.
What happens if it is late
Nothing, immediately. The application is not abandoned. But when the examiner reaches the file, the missing proof of right is raised as an objection in the examination report, and it then has to be supplied with a petition to condone the delay and a fee — and the condonation is at the Controller’s discretion. The application cannot be granted until the requirement is met.
In practice condonation is usually given where the proof exists and the delay is explained. But it adds cost, adds an objection to the report, and puts the applicant in the position of asking for something rather than having complied. Getting the inventors to sign Form 1 before filing avoids all of it.
Where it goes wrong
The inventors have left. The employee who made the invention has moved to a competitor, and will not sign. An employment agreement that vests inventions in the employer solves this; without one, the applicant is negotiating with someone who has no reason to help.
Foreign inventors on a national phase entry. The PCT request names the applicant; it does not establish the applicant’s title in India. The Indian office wants its own proof, and chasing signatures from inventors in three countries inside six months of entry is a recurring scramble.
Corporate chains. The inventor assigned to a subsidiary; the subsidiary assigned to the parent; the parent is the applicant. Each link needs to be shown, or the inventor’s declaration needs to name the actual applicant.
A declaration signed by some inventors. Every inventor who is not an applicant must sign, or an assignment from those who did not must be supplied. A form with three of four signatures is not proof of right for the fourth’s share.
Frequently asked questions
What is proof of right in an Indian patent application? Evidence that an applicant who is not the inventor is entitled to apply — as the inventor’s assignee or legal representative. It is required before a patent can be granted.
How do I provide proof of right? Most simply, by having every inventor sign the declaration on Form 1 stating that the applicant is their assignee. Alternatively, by filing the assignment from the inventors to the applicant, or other evidence of title such as an employment agreement vesting inventions in the employer.
What is the deadline for proof of right? With the application, or within six months of filing. For a PCT national phase entry, six months from entry. The period can be extended on request under the Controller’s general power, which since 2024 runs to six months.
What happens if proof of right is filed late? The application is not abandoned, but the examiner raises it in the examination report and it must then be supplied with a petition to condone the delay and a fee, at the Controller’s discretion. Grant is withheld until it is met.
Do I need proof of right if I am the inventor? No. Proof of right is required only where an applicant is not the inventor. Where some applicants are inventors and others are not, it is required for the non-inventors.
Does the PCT request form count as proof of right in India? No. The Indian office requires its own proof — the inventors’ declaration on Form 1 or an assignment — within six months of national phase entry.
Useful official resources
- IP India — patents — Form 1 and the fee schedule
See our related notes on filing a patent in India, entering the PCT national phase and our earlier note on proof of right.
Inventors who have left, a corporate chain to document, or a national phase entry with signatures outstanding? Talk to us.