I filed a patent application but never asked for examination. What happens now?

You filed a patent application. Maybe it was a provisional filing to hold a date. Maybe a complete specification went in last year. Then the product work took over, and nobody asked the Patent Office to examine it.

Here is the hard fact. The Patent Office does not examine your application on its own. Examination starts only when someone asks for it, within a fixed period. Miss that period and the application is treated as withdrawn. This article explains the rule, which period applies to you, and what you can and cannot do.

The rule in plain words

The Patents Act, 1970 says that no application for a patent shall be examined unless the applicant or any other interested person makes a request in the prescribed manner for such examination within the prescribed period (s.11B(1), Patents Act 1970).

Two things stand out.

First, the request can come from the applicant or from "any other interested person". Most of the time it is the applicant. But a competitor or a licensee could also ask.

Second, the Act does not fix the number of months. It leaves that to the Patents Rules, 2003. The number sits in rule 24B, and it has changed.

What happens if the request is not made

The Act is direct. If the applicant or any other interested person does not make a request for examination within the period, the application shall be treated as withdrawn by the applicant (s.11B(4), Patents Act 1970).

Note the words "treated as withdrawn". You did not file anything to withdraw. The law treats it as if you did.

There is one more thing to know. The applicant may, at any time after filing but before grant, withdraw the application by making a request in the prescribed manner (proviso (i) to s.11B(4), Patents Act 1970). That is a deliberate step. A missed deadline is not the same thing, but the result for the application is similar.

Which period applies: 31 months or 48 months

This is where founders get confused. Older articles and guides say 48 months. That was the period in rule 24B for years.

The Patents (Amendment) Rules, 2024 changed it. In rule 24B, "for the words 'forty-eight months', wherever they occur, the words 'thirty-one months' shall be substituted" (rule 4(a)(i), Patents (Amendment) Rules, 2024). The notification is G.S.R. 211(E), dated 15 March 2024 (the Patent Office lists the rules as published on 15 March 2024), and the rules came into force on the date of their publication in the Official Gazette (rule 1(2), Patents (Amendment) Rules, 2024).

So there are two groups.

Applications not filed before the 2024 Rules came into force. The period is thirty-one months. The wording of rule 24B(1)(i) before the change was: a request for examination under section 11B "shall be made in Form 18 within forty-eight months from the date of priority of the application or from the date of filing of the application, whichever is earlier" (rule 24B(1)(i), Patents Rules 2003, as it stood before the 2024 amendment). With the substitution, the same sentence now reads thirty-one months.

Applications filed before the 2024 Rules came into force. These keep the old period. The amendment says that for an application filed before commencement of the Patents (Amendment) Rules, 2024, "the period for making request for examination under sub-section (1) of section 11B shall be the period specified under this sub-rule before the commencement" of those Rules (rule 24B(1)(vi), inserted by rule 4(a)(ii), Patents (Amendment) Rules, 2024). In plain words, if you filed before the 2024 Rules took effect, your window is still forty-eight months.

Which one are you? Check your filing date against the date the 2024 Rules came into force. The notification is dated 15 March 2024, and the Rules operate from the date of publication in the Gazette. The Rules do not spell out a separate commencement date, so confirm the Gazette publication date with your patent agent before you rely on it, especially if you filed close to that date.

The Patents (Amendment) Rules, 2025 also exist. The text checked for this article does not touch rule 24B, so the latest rule 24B period this article could confirm is the thirty-one months from the 2024 Rules. Before you act, check the current text of rule 24B on the Patent Office website.

Counting the clock: priority date or filing date

Read the rule closely. The period runs from the date of priority of the application or from the date of filing, whichever is earlier (rule 24B(1)(i), Patents Rules 2003).

What does that mean for you?

• If your application claims priority from an earlier application, count from that earlier date. A common case is a first filing in India or abroad, followed by a later filing that claims it.
• If there is no priority claim, count from the filing date.
• If both exist, use the earlier one.

Founders often count from the date they filed the complete specification. That can be wrong if a provisional was filed first and the complete claims its date. Always count from the earlier date.

Special cases the Rules cover

Rule 24B sets different periods for a few situations.

• Secrecy direction. Where a secrecy direction has been issued under section 35, the request may be made within the prescribed period from the date the direction is revoked (proviso (ii) to s.11B(4), Patents Act 1970). Rule 24B(1)(iii) sets this as the period from priority or filing, "or within six months from the date of revocation of the secrecy direction, whichever is later" (rule 24B(1)(iii), Patents Rules 2003).
• Further (divisional) applications. For an application filed under the Explanation to section 16(3), the request is due within the period from filing or from the priority date of the first application, "or within six months from the date of filing of the further application, whichever is later" (rule 24B(1)(iv), Patents Rules 2003).

If your case is any of these, the arithmetic is tied to specific dates. Get it checked by a patent agent.

Step by step: how to request examination

• Find your dates. Write down the filing date, any priority date, and the date the 2024 Rules came into force. Pick the earlier of filing and priority date.
• Pick your period. Thirty-one months if you did not file before the 2024 Rules came into force. Forty-eight months if you filed before. Count forward from the date in step 1 and mark the last day on a calendar.
• File Form 18. The request is made in Form 18 (rule 24B(1)(i), Patents Rules 2003). The fee is set in the First Schedule to the Rules. Check the current fee on the Patent Office portal before you pay. The amount depends on who the applicant is, so this article does not state it.
• Consider expedited examination. Instead of the ordinary request, some applicants can ask for faster examination in Form 18A, on grounds listed in the rule. These include being a startup, a small entity, or a natural-person applicant (or, for joint natural-person applicants, one of them) who is female. The request goes in electronically (rule 24C(1), Patents Rules 2003). The request must be made within the period prescribed in rule 24B (rule 24C(1)). If you already filed an ordinary request, it may be converted by paying the relevant fees and giving the required documents (rule 24C(2)).
• Keep the receipt. Save proof that Form 18 was filed, with the date.

Under rule 24B(2), once a request is filed and the application is published under section 11A, the Controller refers it to the examiner in the order in which requests are filed. Early filing therefore puts you earlier in the queue.

What the Patent Office does after your request

After the request, the clock moves to the examination stage. These are the periods in the Rules, for your planning:

• The examiner's report is ordinarily due in one month, and not later than three months, from the date of reference (rule 24B(2)(ii), Patents Rules 2003).
• The Controller disposes of the examiner's report ordinarily within one month of receiving it (rule 24B(2)(iii)).
• The first statement of objections goes to you within one month from that disposal (rule 24B(3)).
• You then have six months from the date the first statement of objections is issued to put the application in order for grant (rule 24B(5)). This can be extended by three months on a request in Form 4 with the prescribed fee, made before the six months run out (rule 24B(6)).

What not to do

Do not assume 48 months applies to you. It applies only to applications filed before the 2024 Rules came into force. A later application runs on thirty-one months.

Do not count from the wrong date. Use the earlier of the priority date and the filing date.

Do not rely on a late-filing extension. The old rule 138 listed rule 24B(1) among the periods the Controller could not extend (rule 138(1), Patents Rules 2003, before the 2024 amendment). The 2024 Rules also say the Controller's general power to correct irregularities (rule 137) does not apply to matters under rule 24B(1) (rule 13, Patents (Amendment) Rules, 2024, inserting rule 137(2)). The same 2024 Rules substituted rule 138 with a power, "notwithstanding anything contained in these rules", to extend time or condone delay up to six months on a request in Form 4 made before the six months expire (rule 14, Patents (Amendment) Rules, 2024). The new rule 138 does not say whether it reaches the request-for-examination period, and rule 137(2) separately excludes rule 24B(1) from the general correction power. Do not plan around it. Ask a patent agent.

Do not wait for the Patent Office to remind you. The Act puts the duty on the applicant. The consequence of silence is that the application is treated as withdrawn (s.11B(4), Patents Act 1970).

Do not treat a withdrawn application as a minor loss. If you want protection later, you may have to file again. By then your own publication or sales could count against you. Speak to a patent agent before deciding.

What if the window has already passed

If the period has run out, the application is treated as withdrawn by operation of law (s.11B(4), Patents Act 1970). What can be done next depends on your dates and facts, and this article does not claim a remedy. Take these steps:

• Pull the application status from the Patent Office portal and confirm what it shows.
• Check the calculation. Many founders discover they used the wrong date or the wrong period.
• Take the file to a registered patent agent or a CA with IP experience at once. Delay can only make options narrower.
• Check whether a related application, such as a further application under section 16, is still alive (rule 24B(1)(iv), Patents Rules 2003).

What to do now

• Next step: Find your application's filing date and any priority date. Decide whether you are in the thirty-one-month or the forty-eight-month group, and file Form 18 (rule 24B(1)(i), Patents Rules 2003, as amended by rule 4, Patents (Amendment) Rules, 2024).
• Deadline: Thirty-one months from the earlier of the priority date and the filing date for applications not filed before the 2024 Rules came into force. Forty-eight months for applications filed before (rule 24B(1)(i) and (vi), as above).
• Consequence of missing it: The application is treated as withdrawn (s.11B(4), Patents Act 1970).

Have a CA review your facts before you act or file.

FAQs

1. Does the Patent Office examine my application automatically?
No. No application for a patent shall be examined unless a request for examination is made within the prescribed period (s.11B(1), Patents Act 1970).

2. Is the period forty-eight months or thirty-one months?
It depends on the filing date. The 2024 Rules replaced forty-eight months with thirty-one months in rule 24B. Applications filed before those Rules came into force keep the period that applied earlier (rule 24B(1)(vi), Patents Rules 2003).

3. Who can file the request?
The applicant or any other interested person (s.11B(1), Patents Act 1970).

4. Which form do I use?
Form 18 for an ordinary request (rule 24B(1)(i), Patents Rules 2003). Form 18A is for expedited examination (rule 24C(1)). Check the current fee on the Patent Office portal.

5. Can I withdraw my application on purpose?
Yes. The applicant may withdraw at any time after filing and before grant, by making a request in the prescribed manner (proviso (i) to s.11B(4), Patents Act 1970).

6. The date has passed. Is it over?
By the Act, the application is treated as withdrawn (s.11B(4), Patents Act 1970). Whether anything can be done depends on your dates and facts. Take the file to a patent agent straight away.

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See Also

• I filed a provisional patent. What happens at month 12?
• Can my startup get its patent application examined faster? How expedited examination works
• Converting our LLP into a private limited company