Summary
On 31/10/2025, DPIIT published the draft rules and the draft Code of Conduct to regulate the practice and conduct of patent agents, and invited submissions from the public. In response, patent agents associated with BananaIP Counsels submitted their comments and suggestions at both general and specific levels, including proposed language changes to align the rules and code with present day patent practice. The objective of their submission is to support the progress of innovation in India by strengthening a balanced ecosystem in which patent agents play an important role.
Introduction
On 29th November, 2025, senior patent agents and attorneys associated with BananaIP Counsels submitted their comments, suggestions, and proposed changes to the draft patent rules published by DPIIT for public feedback. In their submission, they identified certain important issues with the draft rules and the draft code, and also pointed out aspects of patent practice that have not been addressed in the draft rules and code. To address these gaps, they have proposed changes at both general and specific levels for the review and consideration of DPIIT. Their submission is made available hereunder for your review and comments.
Background
On 31st October, 2025, the Department for Promotion of Industry and Internal Trade (DPIIT) under the Ministry of Commerce and Industry released the draft rules to further amend the Patents Rules 2003 and invited public comments. In response to this invitation, we are submitting our comments and suggestions for the kind consideration of the Government. These comments and suggestions are based on the practical experience of the afore-mentioned patent agents who have engaged in patent filing, prosecution, and related advisory work for nearly twenty years. They are submitted as honest and sincere efforts to support the development of a facilitative, transparent, ethical, and innovation driven patent ecosystem in India.
Structure
This document is presented in two parts.
- General comments
- Specific comments
The general comments section provides observations of a broad nature and highlights important aspects of patent practice that are presently missing from the draft rules and the code of conduct. The specific comments section offers detailed suggestions and proposed language changes relating to particular rules and clauses in the draft rules and code.
I. General Comments
Patent filings in India have been increasing at a steady pace, and India’s standing in the global innovation landscape has improved significantly. To sustain this positive trajectory, it is important to strengthen the ecosystem that supports innovation, patent acquisition, enforcement, and commercialisation. Patent agents form a vital link in this chain, and the move to regulate their practice through amendments to the patent rules is a welcome and timely step.
However, the regulation of patent agents must promote honest and ethical practice and must not impose unreasonable restrictions or create unintended barriers for practising as a patent agent. A fair balance must therefore be maintained. Any imbalance may weaken the broader ecosystem, impact the progress of innovation, and make it more difficult for inventors and applicants to acquire and benefit from patents.
While the draft rules and the code of conduct cover several important areas relating to expected professional behaviour, some provisions are too broad and amount to overregulation. A few provisions also contain language that is vague or unclear and may make the system more restrictive rather than facilitative. Our specific comments relating to these provisions are provided in the next part. In this part, we have provided inputs with respect to important aspects of conduct that are missing from the rules and the code.
Important Aspects Missing from the Draft Rules and Code
The following critical aspects are currently absent from the draft rules and draft code of conduct, though they are very relevant to present day patent practice. They may be considered for inclusion in the final rules and the code.
- Use of AI: Artificial intelligence is now widely used by applicants, agents, and patent offices. However, the draft code of conduct does not provide any guidance on expected professional standards when patent agents use AI tools or outputs. It is required to include provisions that clarify whether AI can be used, for what purposes it can be used, situations where it must not be used, and the consequences of errors or negligence arising from AI generated content.
- Appellate procedure: The draft rules provide for disciplinary proceedings and related orders, but do not describe any appellate process. To ensure fairness, accessibility, and procedural clarity, it may be advisable to include a provision relating to appeals.
- Accessibility for persons with disabilities: The draft rules and the draft code do not include any provisions mandating accessibility of documents and materials to patent agents with disabilities. A provision towards this end may be included to facilitate accessibility of documents, services, and platforms in the context of disciplinary proceedings to persons with disabilities. Similarly, failure by a patent agent to provide accessible documents when requested by the disability officer or the patent agent with a disability may be included as misconduct.
- Sponsoring events: The draft rules cover online advertising but do not address advertising through sponsorship of events, conferences, exhibitions, and so on. Patent firms often sponsor events in India and outside India to attract clients and solicit work. A provision prohibiting this form of indirect advertising may be added.
- Paying for speaking slots: Several firms pay for speaking slots at events with the aim of promoting their services. This has become a regular practice and is used as a marketing tool. A provision restricting such payments would help maintain ethical standards.
- Paying for rankings: Many firms and agents pay to be ranked or profiled on various websites and publications. These rankings are used to market professional services. A clear prohibition may therefore be included in this regard.
- Paid awards: Some patent agents and firms pay for awards or features in magazines or online platforms. Such practices mislead the public and give an incorrect impression of merit. Prohibiting such paid awards will help improve transparency.
Inclusion of the above provisions will help discourage dishonest practices, reduce the influence of commercial entities that profit from such activities, and promote integrity and transparency in the patent system.
Suggested Language for Inclusion in the Rules/Code Regarding Promotion
The following provision may be incorporated in the rules/code to address the advertising, promotion, and solicitation activities of patent agents and firms through events, speaking slots, rankings, and so on:
“Paying for Sponsorship, Ranking, Awards, and Speaking”
A patent agent or a firm shall not undertake any of the following activities to directly or indirectly market, promote, or advertise themselves or their services.
- Pay for or sponsor events in India or internationally.
- Pay for rankings, awards, honours, or any similar recognition.
- Pay to be featured or covered in print or digital publications, magazines, media platforms, or other sources.
- Accept credits in movies, series, media, or creative works as consideration or compensation for professional visibility.
- Pay for speaking slots in events, conferences, webinars, or forums.
- Engage in any activity that involves payment or any other kind of consideration in return for visibility, coverage, placement, display, publication, or exhibition.
Proposed Accessibility Provision in the Rules
The following rule may be included in the patent rules regarding accessibility of disciplinary proceedings:
“Accessibility of Documents and Proceedings”
All documents, notices, orders, and communications issued in the course of any disciplinary or administrative process under the Patents Rules shall be accessible to patent agents with disabilities. The patent office shall ensure that its digital platforms, forms, and communication systems are accessible with respect to the disciplinary proceedings. Patent agents and firms shall provide accessible documents in the format requested by a patent agent with a disability or by the designated disability officer. Failure to provide accessible documents when requested shall constitute misconduct.
The Department for Promotion of Industry and Internal Trade may consider including the above proposed provisions to further strengthen the draft rules and the draft code of conduct and to support a fair, transparent, and inclusive patent ecosystem in India.
II. Specific Comments
This part includes specific comments on provisions in the draft rules as well as the draft code of conduct. Each comment is divided into three parts: the relevant provision as existing in the draft rules/code, the comment with respect to the same, and the proposed language change with respect to the relevant provision.
A. Relating to definition of “Code of Conduct”
Relevant Provision:
In the Patent Rules 2003 (hereinafter referred to as the Principal Rule), after Rule 2(ca), following shall be inserted namely: –
“- 2(cb). “Code of Conduct” means the Code of Conduct which may be published from time to time by the Controller in the Sixth Sechdule of Patent Rule 2003.
Comment:
The definition of “Code of Conduct” may be expressly confined to activities undertaken by patent agents in the course of patent filing, prosecution and maintenance as provided under the Patents Act. Since the Sixth Schedule is intended to regulate the professional conduct of patent agents, such a limitation will help ensure that the Controller is not burdened with complaints that are frivolous or unrelated to the statutory functions of patent agents. In any case, the rules and code of conduct cannot exceed the scope of activities to be performed by patent agents under the Patents Act.
Suggested Change:
In the Patent Rules 2003 (hereinafter referred to as the Principal Rule), after Rule 2(ca), following shall be inserted namely: –
“- 2(cb). “Code of Conduct” means the Code of Conduct for Patent Agents with respect to Patent filing, prosecution and maintenance, which may be published from time to time by the Controller in the Sixth Schedule of Patent Rule 2003.
B. Relating to interpretation of the term “Knowledge of misconduct”
Relevant Provision:
“119B. Complaint of Misconduct to Controller: (1) Any aggrieved person may, file a complaint in Form-34 through electronic means to the Controller within six months from the date of knowledge of such misconduct mentioned under The Sixth Schedule of the said rule.
Comment:
The expression “date of knowledge of such misconduct” is vague and may enable complaints to be filed at any time, with a retrospective assertion that the misconduct became known only recently. To avoid an open-ended limitation period, it is preferable to link the period of six months to the date of the alleged misconduct, with any reliance on a later date of knowledge being supported by appropriate evidence of lack of prior awareness.
Suggested change:
“119B. Complaint of Misconduct to Controller: (1) Any aggrieved person may, file a complaint in Form-34 through electronic means to the Controller within six months from the date of the misconduct mentioned under The Sixth Schedule of the said rule. If the complainant becomes aware of the misconduct after 6 months, the complainant shall file the complaint within one (1) month of the date of becoming aware of the misconduct with documentary evidence to prove that the complainant became aware of the misconduct after the limitation period of 6 months expired.
C. Relating to Controller initiating Disciplinary proceedings on his own motion
Relevant Provision:
“119C. Procedure to deal with complaint received under Rule 119B:
(3). The Controller may, on his own motion, direct the Disciplinary Committee to initiate proceedings against any Patent agent, if, on the basis of sufficient evidence, he is of the opinion that an inquiry is warranted.
Comment:
This provision confers very broad discretion on the Controller to initiate disciplinary proceedings on his own motion, based essentially on his opinion. In the absence of clear safeguards, such a power may be perceived as susceptible to arbitrary or selective use. If the Controller is to act suo motu, it is desirable that this be based on a reasoned and speaking order, supported by evidence, communicated to the concerned patent agent, and accompanied by an opportunity of being heard. In view of these concerns, it is respectfully suggested that such a provision may not be incorporated in the Rules.
Suggested Change:
This provision may be deleted from the rules.
D. Relating to mode of proceedings
Relevant Provision:
119 C. (4). The Disciplinary Committee may conduct its proceedings, either physical, virtual or hybrid mode as the Presiding Officer may deem appropriate.
Comment:
The provision, as presently worded, does not expressly state that the patent agent will be afforded an opportunity of hearing, and focuses only on the possible modes of conducting proceedings, which include physical, electronic, and hybrid. Given that most patent related procedures are already conducted electronically, it may be appropriate to mandate that disciplinary proceedings be held on a virtual platform, while clearly confirming that both the complainant and the patent agent will receive a fair opportunity of hearing and of placing written submissions on record.
Suggested Change:
119 C. (4). The Disciplinary Committee shall conduct its proceedings on a virtual platform. An opportunity of hearing shall be given to the Complainant and the Patent Agent before the disciplinary committee passes any order. The parties shall also be permitted to file written submissions following the hearing.
E. Relating to ex parte proceeding
Relevant Provision:
119 C. (7). In case where, the patent agent or the complainant fails, neglects or refuses to appear before the Disciplinary Committee on the date fixed for hearing, the Committee shall proceed with its inquiry in the absence of such person after recording the reasons for doing so.
Comment:
In order to ensure that the process is fair and reasonable, it is suggested that the parties be permitted a limited number of adjournments on valid grounds before the matter is decided ex parte. Providing at least two opportunities to seek adjournment for bona fide reasons would balance procedural efficiency with natural justice.
Suggested Change:
119C. (7). In case where, the patent agent or the complainant fails, neglects or refuses to appear before the Disciplinary Committee on the date fixed for hearing, the Committee shall proceed with its inquiry in the absence of such person after recording the reasons for doing so. Provided however that, the committee shall provide atleast three opportunities to appear before proceeding exparte.
F. Relating to constitution of the disciplinary committee
Relevant Provision:
“119D. Constitution of Disciplinary Committee: (1) The Controller shall constitute a Disciplinary Committee for the purpose of Rule 119C consisting of the following:
a. Presiding officer, who is not below the rank of a Joint Controller.
b. Two Senior officials, who are not below the rank of Deputy Controller.
c. Two Practicing Agents before Patent Office, who at least have twenty years of active work experience before Patent Office.
Provided that no members of disciplinary committee shall have any conflict of interest with subject matter and any party to the proceeding.
Provided further that Controller may constitute one or more Disciplinary Committee deemed necessary.”
Comment:
To promote fairness, transparency and confidence in the process, it is desirable that the Disciplinary Committee have a balanced composition, including representatives of the Patent Office and the patent agents’ community, as well as an independent expert in patent law. A five member committee comprising two patent office officials, two experienced practising patent agents and a well-recognized jurist or professor in patent law would help achieve this balance. Further, it is recommended that an independent Disciplinary Committee be constituted for each complaint and its connected proceedings, so that no single committee is perceived as permanent or predisposed.
Suggested Changes:
“119D. Constitution of Disciplinary Committee: (1) The Controller shall constitute a Disciplinary Committee for the purpose of Rule 119C consisting of the following:
- Presiding officer, who is not below the rank of a Joint Controller.
- A Senior official, who is not below the rank of Deputy Controller.
- Two Practicing Agents before Patent Office, who at least have twenty years of active work experience before Patent Office.
- A well recognized jurist or professor in the field of patent law with at least 20 years of experience in the field.
An independent disciplinary committee shall be constituted to handle every complaint and related proceedings.
Provided that no members of disciplinary committee shall have any conflict of interest with subject matter and any party to the proceeding.”
G. Relating to Confidentiality of the Proceedings
Relevant Provision:
“119G. Confidentiality of Proceedings. – The proceedings before the officer authorized by the Controller and the Disciplinary Committee shall be kept strictly confidential, and records shall not be open to public.”
Comment:
While confidentiality has its place, complete non disclosure of proceedings may not align with the objectives of transparency, accountability and fairness to patent agents. It is therefore suggested that confidentiality be maintained during the pendency of the inquiry, but that the final order, along with all documents, proceedings, and reasons, be published and made available for public inspection after conclusion.
Suggested Change:
119G. Confidentiality of Proceedings. – The proceedings before the officer authorized by the Controller and the Disciplinary Committee shall be kept strictly confidential, and records shall not be open to public until the order is passed. All documents and details relating to the said proceedings shall be published along with the order and shall be made available for public inspection.
H. Relating to transmission of communication
Relevant Provision:
“119H. Communication under Rule 119B, 119C, 119F, 119I.- All Communications under Rule 119B, 119C, 119F and 119I shall be transmitted through electronic means only. In proving such transmission, it shall be sufficient to show that the communication was properly addressed and transmitted through electronic means.
Comments:
In practice, patent agents may occasionally not receive electronic communications from the Patent Office due to technical issues, server problems or other factors beyond their control. To address this, a communication may be deemed to be served only when it is not only properly addressed and transmitted, but is also actually delivered to the recipient. In addition, where the patent agent is a person with disability, it is important that all documents be provided in accessible formats and that all proceedings be conducted through accessible platforms, modes and means in line with applicable law relating to equal access.
Suggested Change:
119H. Communication under Rule 119B, 119C, 119F, 119I.- All Communications under Rule 119B, 119C, 119F and 119I shall be transmitted through electronic means only. A communication will be considered as served, if it is properly addressed, transmitted through electronic means and delivered to the recipient. If the Patent Agent is a person with disability, all documents shall be served in accessible formats, and all proceedings shall be conducted through accessible platforms, modes and means.
Comments relating to the draft of Code of Conduct under the sixth Schedule
A. Relating to the scope of the term “discourteous”
Relevant Provision:
1B. No Agent shall: –
a. behave in a discourteous manner with the proprietor and the Controller and other Patent officers.
Comment:
The word “discourteous” is broad, subjective and capable of differing interpretations. Further, the requirement that a patent agent conduct himself or herself in a professional manner is already addressed under other provisions. It may therefore be preferable either to omit this provision or to reframe it in terms of clearly defined standards of professional behaviour, so as to avoid uncertainty or overlapping obligations.
Suggested Change:
1B. No Agent shall: –
- behave in an unprofessional manner with the proprietor and the Controller and other Patent officers.
B. Relating to Agent being applicant or opponent
Relevant Provision:
1B. No Agent shall: –
e. falsely or in bad faith cause himself or member of his office, or his relatives or relatives of members of his office as applicant or inventor or opponent in any patent application or opposition for consideration or otherwise cause such acts;
Comment:
The existing language is very wide and could be interpreted to mean that patent agents are altogether prohibited from being applicants, inventors or opponents in any patent matter, even where they act in a genuine and bona fide capacity. The intention appears to be to prevent misuse of the system for dishonest or mala fide purposes, such as adding names for consideration or other improper motives. The provision may therefore be clarified to ensure that it does not restrict patent agents, their colleagues or their relatives from being applicants, inventors or opponents in bona fide matters.
Suggested Change:
1B. No Agent shall: –
- falsely or in bad faith cause himself, any member of his office, or their respective relatives to be shown, recorded or added as an applicant, inventor or opponent in any patent application, opposition or other patent proceeding, whether for consideration or for any other improper purpose, where such person is not a bona fide applicant, inventor or opponent. Provided that nothing in this clause shall prevent a patent agent, any member of his office, or their respective relatives from being an applicant, inventor or opponent in any patent matter where such person is a bona fide applicant, inventor or opponent.
C. Relating to adherence to statutory timelines
Relevant Provision:
1B. No Agent shall: –
f. fail or neglect to adhere to statutory timelines despite holding clear instructions from client,
Comment:
In practical terms, a patent agent can adhere to statutory timelines only when, in addition to clear instructions, the client provides all necessary documents and pays the applicable statutory fees and related charges such as stamp duty and affidavit related fees in good time. In the absence of such payments or documents, the patent agent may be unable to act, despite best efforts. The rule may therefore expressly recognize that the agent’s responsibility is contingent on the client’s timely fulfilment of these prerequisites.
Suggested Change:
1B. No Agent shall: –
- fail or neglect to adhere to statutory timelines in respect of any matter under the Act despite holding clear instructions from the client and having, within a reasonable time before expiry of such timelines, received from the client the necessary documents and all applicable statutory fees and other charges, including but not limited to stamp duty and fees for affidavits or notarization. Provided that no patent agent shall be liable under this clause where the non-compliance with statutory timelines is directly attributable to the client’s failure or delay in providing instructions, documents or the required fees.
D. Relating to withdrawal of representation
Relevant Provision:
1 C. No Agent shall withdraw from a patent application without just and reasonable cause, except:-
for non-payment of professional charges within a stipulated period, or
if he is unable to obtain instructions from his client or locate the client; provided the Agent is able to show exercise of reasonable due diligence on his part; or
the Agent seeks to retire from practice; or
the client’s conduct is dishonorable or in bad faith.
Provided that the withdrawal would be preceded by a notice in writing of not less than 30 days to the client;
Comments:
There are several legitimate circumstances in which a patent agent may find it difficult or inappropriate to continue acting for a client. These may include non-payment of professional fees, non-payment of statutory or official fees, failure to provide necessary documents or timely instructions, last minute changes in instructions, inability to contact the client despite reasonable efforts, refusal to honour agreed fee terms, attributing blame to the agent for adverse patent decisions or consequences arising from the client’s own acts or omissions, unprofessional behaviour towards the agent or staff, and disregard of agreed standards recorded in the engagement letter. In practice, clients may also transfer files to another representative without informing the existing patent agent or formally changing the power of attorney, which may expose the agent to unintended risk for matters no longer under his or her control. In this context, the Rules may clearly permit the patent agent to withdraw from representation for these reasons, and to do so with immediate effect and without further responsibility where timely instructions or statutory payments are not forthcoming, files have been transferred, the client’s behaviour is unprofessional, or the client does not adhere to the agreed terms.
Suggested Change:
1C. No Agent shall withdraw from a patent application or any matter under the Act except for just and reasonable cause, which shall include, without limitation, the following situations:
- persistent or material non-payment of agreed professional fees, or refusal to pay the same, despite written demand and reasonable opportunity to pay; or
- non-payment or delayed payment of statutory fees, official fees or other mandatory charges, including but not limited to stamp duty, fees for affidavits, notarization or legalization, which prevents the Agent from acting within the prescribed timelines; or
- failure, refusal or neglect on the part of the client to provide requisite documents, information, signatures or approvals, or to give clear and timely instructions or inputs, including giving or changing instructions at such a late stage that proper and diligent representation within statutory timelines is not reasonably possible; or
- the Agent being unable, despite exercise of reasonable due diligence, to obtain instructions from or to locate the client; or
- the client transferring or instructing transfer of the matter or files to another patent agent, attorney or firm, or otherwise dealing with another representative in respect of the same matter, without withdrawing or varying the power of attorney or authorisation filed in favour of the Agent; or
- the client’s conduct being dishonest, in bad faith, abusive, defamatory, or otherwise unprofessional towards the Agent or his staff, or the client unreasonably blaming the Agent for consequences arising from adverse outcomes, or the client’s own acts or omissions; or
- persistent failure of the client to adhere to agreed standards, protocols or terms recorded in the engagement letter, including timelines for providing instructions and information; or
- the Agent seeking to retire from practice, or any conflict of interest or other professional reason that, in the opinion of the Agent, makes continued representation improper or inconsistent with his professional obligations.
Provided that the withdrawal shall ordinarily be preceded by a written notice of not less than thirty days to the client, except where statutory timelines or the conduct of the client make such period impracticable, in which case the Agent may withdraw upon giving such shorter written notice as is reasonable in the circumstances.
Provided further that where the client has failed to provide timely instructions or to pay statutory fees or other mandatory charges, or has transferred the matter or files to another representative, the Agent may withdraw with immediate effect upon written notice to the client and shall bear no responsibility or liability for any adverse consequences arising after the effective date of such withdrawal that are attributable to the acts or omissions of the client or any subsequent representative.
Conclusion
The afore-mentioned comments, suggestions, and recommendations have been provided with the bonafide intent of improving the draft rules and code of conduct, and may be considered by the Government before finalising the rules and the code. It is our considered opinion that implementing the suggested changes will improve the innovation and patent ecosystem in India by enabling honest, transparent, and ethical practice by patent agents without making it too restrictive and burdensome for them.
Limitation and Disclaimer
The views and suggestions set out in this submission are those of the Patent Agents, expressed in their individual professional capacity, and do not represent or purport to represent the views or official position of BananaIP Counsels or any of its partners, associates or employees. The comments are based on the practical experience of the Patent Agents and their understanding and interpretation of the Patents Act, 1970, the Patent Rules, 2003 and the proposed Code of Conduct and draft rules as on the date of this submission.
This submission is being made as a bona fide and constructive effort to assist the Government in strengthening and improving the proposed Code of Conduct and draft rules, with a view to promoting fairness, transparency and efficiency in the regulatory framework governing Patent Agents. It is not intended to be, and should not be construed as, legal advice to any person, nor as a comprehensive statement of all possible issues or solutions. The Patent Agents and BananaIP Counsels expressly disclaim any liability arising from any reliance placed on this submission, and reserve the right to modify or withdraw their views in the light of future developments in law, practice or policy.
An accessible version of the comments and suggestions is available in Word format here: Comments and Suggestions – Regarding the Draft Rules to Further Amend the Patents Rules 2003