Summary
The Indian courts have, over the last few years, developed a consistent approach to abandoned patent applications: where the applicant can show that the abandonment was caused by the patent attorney or agent and not by any intention of their own, the court will restore the application and treat the professional's failure as the operative cause of the loss. The advocate analogy has driven this jurisprudence at every stage, and its application has produced outcomes that, in individual cases, may well be just. The difficulty lies not in the principle but in what surrounds it. The evidentiary record that courts have accepted is narrow. The professional has rarely been heard fully or fairly. And the applicant's own responsibilities, including the obligation to pay professional and statutory fees promptly, to provide instructions where appropriate and keep them current, to provide fresh instructions in time when required, to engage professionals on clear terms, and to remain actively involved in the prosecution of their own rights, have received no examination at all. The result is a body of case law that has made the patent attorney or agent the default explanation for abandonment, imposed a standard of responsibility that no professional relationship could honestly be expected to meet, and done so without the complete analysis that justice requires. That needs to change. Courts must ask harder questions of both parties. Applicants must be held to their share of the relationship. And patent attorneys and agents must document their work, communicate clearly, hold the line on fees and instructions, and find the collective voice that this moment in the profession's history demands.
The Convenient Culprit
A patent application is abandoned. The applicant approaches the court. The story, almost invariably, is the same: the patent attorney or agent did not inform them. Did not tell them about the examination report. Did not communicate the office action. Did not pass on the notice. Did not follow up. Did not do what any reasonably diligent professional would have done. The court, moved by the loss of a valuable intellectual property right and guided by the principle that a party should not suffer for the fault of their representative, exercises its writ jurisdiction, sets aside the abandonment, and restores the application. The applicant walks away with their patent intact. The attorney or agent walks away with an inquiry, a finding of negligence, and a professional reputation that has taken a hit it may never recover from. This is the pattern that has now settled into Indian patent jurisprudence with enough consistency that it can no longer be described as exceptional relief in extraordinary circumstances. It has become, for all practical purposes, a recognisable outcome, one that applicants and their new counsel are aware of, that courts have become familiar with, and that the profession is beginning to feel the weight of in ways that deserve serious examination.
That the courts have intervened to protect applicants in genuine cases of professional neglect is not the problem. The problem is what has been built around that intervention: a body of jurisprudence that has elevated the patent attorney or agent into the universal explanation for abandonment, that has accepted a dangerously thin evidentiary record as sufficient proof of professional failure, and that has done so without asking the harder questions about what the relationship between a professional and their client actually involves, what the client’s own responsibilities in that relationship are, and whether the professional has been given any real opportunity to be heard.
Blaming the Patent Attorney
Indian courts have developed a consistent approach to abandoned patent applications. The principle at the heart of it is straightforward: where an applicant can demonstrate that they had no intention of abandoning their application and can show that the abandonment was caused by the conduct of the patent attorney or agent, the court will exercise its writ jurisdiction to restore the application. The engine driving this jurisprudence is the advocate analogy. Courts have held that the relationship between a patent professional and their client is, in its essential character, no different from the relationship between an advocate and a litigant, and that just as a court will not permit a litigant to suffer permanently for counsel’s negligence, it will not permit a patent applicant to lose a valuable statutory right because their professional representative failed to act. In practice, this has meant that courts have restored applications where professionals failed to communicate examination reports, missed deadlines, did not pass on office actions, or simply went silent on clients who were following up. In one significant case, the court went further still, directing the preparation of a formal Code of Conduct for patent attorneys and agents and ordering an inquiry into the specific professional’s conduct, signalling that what the judiciary sees is not a series of isolated lapses but a systemic problem requiring structural intervention.
The principle, stated at that level of generality, is not wrong. An applicant who has genuinely been failed by their patent attorney or agent deserves a remedy. But the manner in which the principle is being applied raises questions that the cases have not yet confronted, and it is those questions that the profession must now insist be asked.
A Thin Record
The evidentiary picture that courts have accepted in these cases is, when examined carefully, a remarkably thin one. On one side sits the applicant, armed with a chain of follow-up emails and an affidavit attesting that they were never informed of the relevant deadline. On the other sits the patent attorney or agent, frequently not given the opportunity to produce any written record of having communicated the critical information, and in many cases not having been given adequate notice that their conduct was about to be examined and found wanting in open court. What the courts have examined is a version of the same narrow question in each case: did the professional inform the applicant? Where the applicant has presented a story of not being informed, the finding of negligence has followed almost as a matter of course.
What the courts have not asked is important to take note of. They have not looked at the response and evidence of the involved patent attorneys fully and carefully. They have not reviewed the terms of the engagement or what each party was required to do under it. They have not looked at the way in which applicants are engaging with patent attorneys, and have not inquired into the payment position, whether fees were paid at all or paid in time, or whether the professional was expected to act without the financial means to do so. They have not asked whether the applicant provided the technical inputs and instructions that the attorney or agent needed to act, or whether those were provided in time. They have not reviewed the broader history of the relationship or the conduct of both parties across the full life of the engagement. And they have not, in most cases, given the professional a meaningful opportunity to present their account before recording findings with serious consequences for their standing. The advocate analogy that courts have found so compelling cuts both ways. Even an advocate is not expected to file without instructions, pay court fees from their own pocket, or appear at a hearing without knowing their client’s position. Applied honestly, the analogy distributes responsibility between the professional and the party they serve. Applied selectively, it becomes an instrument that loads all responsibility onto one side of a two-sided relationship.
The Other Side
There is a version of the patent applicant that the courts appear to have in mind: an unknowing applicant, entirely dependent on their patent attorney or agent for every step of the process, and completely in the dark until the moment they discover the abandonment. That picture is not always inaccurate, but it is far from the complete picture. Many applicants in these proceedings are corporations with dedicated intellectual property departments, multinationals with global patent portfolios, and technology companies that file hundreds of applications across dozens of jurisdictions every year. The suggestion that such an applicant was entirely dependent on a single professional and had no independent means of discovering that something had gone wrong requires a degree of credulity that the courts have extended rather too readily. Beyond the identity of the applicant, the terms on which professionals are engaged vary enormously. Many are engaged for deliberately limited roles, filing and prosecuting on instruction, with strategy, inputs, and decisions remaining firmly with the applicant or their in-house team. Courts have not engaged with this dimension at all.
The dimension of applicant responsibility most conspicuously overlooked is payment. Patent work involves statutory fees at every stage, from filing to examination, office actions, hearings, and renewals. In many relationships in India, those fees do not arrive in advance or on time. What makes this more serious than it might appear is that patent attorneys and agents frequently advance statutory fees from their own pocket to keep a client’s application moving, trusting that reimbursement will follow. When that reimbursement is delayed or does not come at all, the professional who has already paid once may simply not have the risk endurance capability to advance fees again for the next action. In that situation and when applicants default on payments multiple times, an attorney or agent who does not file is not being negligent. The same pattern holds for professional fees. Where a client delays or withholds the fee owed for the attorney’s own services, rather than only the statutory fee advanced to the Patent Office, the professional is left carrying both the unpaid statutory advance and unpaid professional fees while still being expected to track every deadline and act on demand. An attorney or agent working without payment for their own services is in no different a position than one working without reimbursement for fees advanced on the client’s behalf. They are dealing with the consequences of a payment relationship that the client has not honoured. That context has been entirely absent from the courts’ analysis.
Equally overlooked is the instruction dimension. Every stage of patent work requires active participation from the applicant, whether technical disclosure for filing, decisions on prosecution strategy, authorisation for amendments, instructions for hearings, or conscious decisions to maintain a patent through renewal. Some applicants give standing instructions that cover routine actions, and where such instructions exist and are clear, the professional can act without seeking fresh approval each time. But standing instructions are rare, and most applicants do not give such instructions. Where the instruction is kept pending or requires multiple follow-ups and reminders, or where the instruction is ambiguous in its application to a specific office action or deadline, the professional must seek fresh guidance. Those inputs and clarifications are frequently delayed, incomplete, or provided so close to the deadline that meaningful action is no longer possible. When a deadline passes in those circumstances, the professional’s failure to act and the applicant’s failure to instruct in time are not separate events. They are the same event, viewed from two different sides of the same relationship. Responsibility in patent work is shared, the terms of engagement define where it lies, and a framework that ignores the applicant’s share of it is neither accurate nor just.
A Fairer Framework
A court that is serious about doing justice in these cases must be willing to ask more than it has been asking. It must examine the nature and terms of the engagement and whether both parties discharged their respective obligations under it. It must ask about the payment history: whether professional fees for the attorney’s own services were paid on time or left outstanding, whether statutory fees were paid in advance or in arrears, whether the applicant has defaulted or delayed either category of payment regularly, and whether the professional was asked to advance statutory fees and whether those advances were reimbursed in time to enable further action. It must ask whether the applicant provided standing instructions and, if so, whether those instructions were adequate to cover the situation that resulted in the lapse. It must ask whether fresh instructions were sought and provided in time where the situation required them. It must examine the conduct of both parties across the life of the relationship, not merely in the final period before the deadline. And it must ensure that the patent attorney or agent is given proper notice and a genuine opportunity to present their full account before any adverse finding is recorded. These are not unreasonable demands. They are the minimum requirements of fairness in any proceeding where a professional’s reputation and livelihood are at stake.
Applicants must equally be held to the responsibilities the patent relationship places on them: engaging professionals on clear and documented terms, paying professional fees for the attorney’s own services on time, advancing or promptly reimbursing statutory fees paid on their behalf, not delaying or defaulting on either category of payment, providing standing instructions where appropriate and ensuring those instructions are kept current, and providing specific guidance in time when a situation requires it. A court that does not ask these questions of the applicant is not doing justice. It is doing something easier, and something less.
Fighting Back with Dignity
For patent attorneys and agents, the path forward is clear in principle even where it demands discipline in practice. Every engagement must be documented in writing, with the scope, payment terms, and each party’s obligations clearly recorded. Where the applicant gives standing instructions, those instructions must be recorded in writing, their scope must be defined, and any ambiguity in their application to specific situations must be flagged and resolved before action is taken or declined. Every significant communication must be in writing, with deadlines and consequences stated explicitly. Every communication touching on a time-sensitive matter must carry a clear disclaimer stating the risk, the deadline, and the professional’s inability to act without the necessary instructions or payment. A communication that says, in plain terms, that the deadline for a particular action is a specified date, that failure to act by that date will result in a specified consequence, and that the professional is unable to act without the applicant’s instructions or the required fees, is a communication that serves the client honestly and protects the professional fairly.
Where statutory fees are advanced by the attorney or agent from their own funds, that advance must be documented, the expectation of timely reimbursement must be stated clearly, and the professional’s ability to take further actions must be made explicitly conditional on the receipt of those reimbursements. An attorney or agent who has advanced fees once and not been reimbursed is entitled to decline to advance them again, and that position must be communicated to the client in writing before the next deadline arrives. The same discipline applies to professional fees: engagement terms should state clearly when fees for the attorney’s own services fall due, and an attorney or agent is entitled to pause work, decline to take a further step, or withhold filing until outstanding professional fees are settled, provided that position has also been communicated to the client in writing in advance of the relevant deadline. Beyond individual practice, the profession must find its collective voice, through its associations, through intervention in proceedings that affect it, and through public engagement with courts and regulators. Not to escape accountability, but to insist that accountability be applied honestly, to both sides of a relationship that the patent system cannot function without. Patent attorneys and agents carry knowledge, skill, and experience that the system depends on. Their professional dignity is not a peripheral concern. It is central to the health of a system that cannot function without them, and it is time for that system, including its courts and its applicants, to recognise that. The system depends on both sides. It is time for everyone involved to act as though they know that.
Disclaimer
The views and opinions expressed in this article are purely personal to the author. They do not represent the official views, positions, or policy of BananaIP Counsels, its partners, professionals, employees, clients, or affiliates. This article is intended for general informational and educational purposes only and does not constitute legal advice. Readers should seek independent professional advice on specific matters. An AI application was used in the preparation of parts of this article based on user inputs and prompts.
References
- Bry-Air Prokon Sagl v. Union of India, W.P.(C)-IPD 25/2022 (Del. H.C. Oct. 17, 2022), https://indiankanoon.org/doc/126963516/ (last visited June 28, 2026).
- Chandra Sekar v. Controller of Patents & Designs, W.P. Nos. 12620 & 12621 of 2017 (Madras H.C. Nov. 4, 2022), https://indiankanoon.org/doc/181331572/ (last visited June 28, 2026).
- Ciena Corp. v. Union of India, W.P.(C)-IPD 15/2025 & CM 49-51/2025 (Del. H.C. Mar. 7, 2025), https://indiankanoon.org/doc/86093980/ (last visited June 28, 2026).
- The European Union Represented by the European Commission v. Union of India, W.P.(C)-IPD 5/2022 & W.P.(C)-IPD 6/2022 (Del. H.C. May 31, 2022), https://indiankanoon.org/doc/15992478/ (last visited June 28, 2026).
- M/s Green Energy Resources v. Union of India, W.P.(C) No. 19128 of 2024 (Orissa H.C. Feb. 12, 2026), https://indiankanoon.org/doc/19198010/ (last visited June 28, 2026).
- Neurocentria Inc. v. Deputy Controller of Patents & Designs, C.A.(COMM.IPD-PAT) 5/2025 (Del. H.C. May 18, 2026), https://indiankanoon.org/doc/137358450/ (last visited June 28, 2026).
- PNB Vesper Life Science Pvt. Ltd. v. Controller General of Patents, W.P. No. 22253 of 2021 & W.M.P. No. 23629 of 2021 (Madras H.C. Mar. 14, 2022), https://indiankanoon.org/doc/38882466/ (last visited June 28, 2026).
- Saurav Chaudhary v. Union of India, W.P.(C)-IPD 9/2023 (Del. H.C. July 4, 2024), https://indiankanoon.org/doc/169597927/ (last visited June 28, 2026).
- Waterotor Energy Technologies Inc. v. Union of India, W.P.(C)-IPD 7/2024 (Del. H.C. Dec. 9, 2024), https://indiankanoon.org/doc/170825424/ (last visited June 28, 2026).