How to File a Request for Examination in India: Section 11B of the Patent Act

In the process of obtaining a patent in India, filing an application is only the first step. A patent is not automatically examined once the application is filed. The applicant must formally request an examination within a prescribed period. This crucial step is governed by Section 11B of the Indian Patent Act, 1970, which lays down the procedure and timelines for requesting the examination of a patent application.

Without making a request for examination (RFE), the application will never proceed to the next stage of scrutiny – meaning, no patent will be granted. This ensures that only serious applicants pursue patent rights and prevents the Patent Office from being overloaded with unnecessary examinations.

Section 11B: Request for Examination

Section 11B of the Indian Patent Act states 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.”

This means that even though an application is filed, it will not move forward until a formal request for examination is made.

Who Can File the Request for Examination?

Under Rule 24B of the Patent Rules, 2003, the following individuals can file a request for examination (Form 18):

1. The applicant — the person who has filed the patent application.
2. An assignee — a person or entity to whom the rights have been assigned.
3. Any interested person — such as a licensee or a third party who has a legitimate interest in the patent being granted or refused.

However, it is usually the applicant or patent agent who files this request to keep the application active.

Time Limit for Making a Request

The request for examination must be made within 48 months from the date of filing of the patent application or the priority date, whichever is earlier.

If the request is not filed within this time limit, the application is deemed withdrawn under Section 11B(4). This means the applicant loses the right to have the application examined, and consequently, no patent can be granted.

For example:
If a patent application is filed on 1st January 2021, the request for examination must be filed on or before 31st December 2024.

Forms Used for Request

The request for examination is made using:

• Form 18 – Regular request for examination.
• Form 18A – Request for expedited examination (introduced by the Patent (Amendment) Rules, 2016).

Feature	Form 18	Form 18A
Type	Regular Examination	Expedited Examination
Eligibility	All applicants	Startups, small entities, ISA/IPEA applicants, etc.
Queue Priority	Standard	Prioritized
Supporting Documents	Not required	Required (e.g., DPIIT certificate)
Fee	Standard	Higher

Expedited examination is allowed only for certain categories of applicants such as startups, small entities, women inventors, or applicants who have chosen India as the International Searching Authority (ISA) or International Preliminary Examining Authority (IPEA) under the Patent Cooperation Treaty (PCT).

Procedure after Filing the Request

Once the request is filed, the following steps take place:

1. Examination Queue:
   Applications are taken up for examination in the order in which requests for examination are received (not by filing date).
2. Allocation to Examiner:
   The Controller assigns the application to an examiner, who conducts a search and examination based on patentability criteria — novelty, inventive step, and industrial applicability.
3. Examination Report (FER):
   The examiner issues a First Examination Report (FER) under Section 12 and 13, listing any objections.
4. Response by Applicant:
   The applicant must respond to these objections within 6 months (extendable by 3 months) from the date of the FER.
5. Grant or Refusal:
   If all objections are resolved, the patent is granted. Otherwise, the application is refused under Section 15.

Request filed → Application queued → FER issued → Response → Grant or Refusal

Purpose of Section 11B

The main objective behind introducing Section 11B is to streamline and regulate the patent examination process. Without this provision, the Patent Office would have to examine every filed application — even those that applicants might abandon or are not serious about.

By requiring a separate request for examination:

• Only serious applications are examined.
• The workload of examiners is reduced.
• The examination queue is more efficient.
• Applicants have flexibility to decide whether to proceed with their application after publication (under Section 11A).

Consequences of Not Filing a Request for Examination

If the applicant fails to file the request within the 48-month period:

• The application is deemed withdrawn.
• It cannot be revived after expiry of the period.
• The applicant loses all rights associated with that application.

Therefore, it is crucial for inventors and patent agents to track deadlines carefully.

💡 Tip for Applicants:
Always set calendar reminders for the 48-month deadline. Missing it means permanent loss of rights — no revival is possible.

Judicial Viewpoint

Indian courts have emphasized that Section 11B’s time limit is mandatory and not extendable beyond what is prescribed.

In Ferid Allani v. Union of India (2019 SCC OnLine Del 11867), the Delhi High Court discussed the importance of timely examination in promoting innovation and reducing backlog. Though the case focused on software patentability, it highlighted the procedural discipline required in the patent system — of which Section 11B forms a vital part.

Distinction between Publication and Examination

It is essential to differentiate between Section 11A (Publication) and Section 11B (Examination):

• Publication (11A) makes the application open to the public after 18 months.
• Examination (11B) is an active step by the applicant to get the application scrutinized.

Feature	Section 11A (Publication)	Section 11B (Examination)
Trigger	Automatic or via Form 9	Requires Form 18 or 18A
Timing	After 18 months	Within 48 months
Effect	Public disclosure	Scrutiny for patentability
Rights	Provisional rights	Leads to grant/refusal

Publication merely informs the world about the invention; examination determines whether it deserves a patent.

📌 Did You Know? Some applicants delay filing Form 18 until after publication (Section 11A) to assess market interest or opposition risk before committing to examination.

Conclusion

Section 11B of the Indian Patent Act, 1970, serves as a gatekeeper for the patent examination process. It ensures that only applicants genuinely interested in obtaining patent rights move forward. The requirement to file a request within 48 months, using Form 18 or 18A, not only maintains procedural discipline but also helps the Patent Office manage its workload efficiently.

In simple terms, no request — no examination — no patent.
Hence, every inventor or patent agent must treat the request for examination as one of the most important milestones in the patent journey.

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References

1. The Patents Act, 1970 (as amended up to 2021) — Section 11B.
2. The Patent Rules, 2003 — Rules 24B and 24C.
3. Ferid Allani v. Union of India, 2019 SCC OnLine Del 11867.
4. Controller General of Patents, Designs & Trademarks — Manual of Patent Office Practice and Procedure, 2020.

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