Late national phase entry in India is possible. The deadline under Rule 20(4)(i) is 31 months from the earliest priority date, but since 15 March 2024 the Controller may condone a delay of up to six months on a request in Form 4 under the substituted Rule 138 — taking a national phase application to 37 months. The extension fee is ₹10,000 per month for a natural person, startup, small entity or educational institution, and ₹50,000 per month for everyone else.
Most applicants — and a fair number of practitioners — still work on the assumption that 31 months is an absolute wall in India. It was, until the Patents (Amendment) Rules, 2024 came into force. Two years on, the assumption persists, and we still see foreign associates write off India after the 31-month date has slipped when the application could have been saved.
This post sets out exactly what changed, why the change is easy to miss, what the Patent Office’s own e-filing system now allows, what it costs per month, and where the older court decisions now stand.
The deadline: 31 months under Rule 20(4)(i)
An international application designating India must enter the national phase within 31 months from the earliest priority date, under clause (i) of sub-rule (4) of Rule 20 of the Patents Rules, 2003. Where no priority is claimed, the period runs from the international filing date.
India is one of the offices that adopted the longer 31-month period rather than the 30 months in PCT Article 22, so applicants working to a 30-month diary for the United States, China or Japan have an extra month here. We set out the wider route in our guide to PCT filing and national phase entry into India. That extra month is also why a missed India deadline is often noticed only after several other deadlines have already passed.
What changed on 15 March 2024
The Patents (Amendment) Rules, 2024 were notified by G.S.R. 211(E) dated 15 March 2024 and came into force on publication. Item 14 of that notification substituted Rule 138 in full. The new rule reads:
138. Power to extend time specified or condone delay. — Notwithstanding anything contained in these rules, the time specified for doing any act or taking any proceeding thereunder may be extended or any delay may be condoned by the Controller for a period of up to six months, upon a request made in Form 4, where such request is made before the expiry of the said period of six months:
Provided that such request may be made any number of times within the specified period of six months.
Three features of that text matter for national phase entry.
It opens with “notwithstanding anything contained in these rules” — a non-obstante clause that overrides other rules rather than yielding to them. It carries no list of excluded timelines, which the previous version did. And it covers condonation of delay, not merely prospective extension, so it can be invoked after the date has already gone.
Why so many readers concluded the opposite
Here is the detail that causes the confusion, and it is worth understanding properly because it is the whole argument.
The pre-2024 Rule 138 began: “Except for the time prescribed in clause (i) of sub-rule (4) of rule 20, sub-rule (6) of rule 20, rule 21, sub-rules (1), (5) and (6) of rule 24B…” — a carve-out list that expressly put the 31-month national phase deadline beyond the Controller’s reach, and allowed only one month for everything else.
The 2024 amendment did not delete that list. It moved it. Item 13 of the same notification renumbered Rule 137 as sub-rule (1) and inserted a new sub-rule (2) carrying the familiar list — including “clause (i) of sub-rule (4) and sub-rule (6) of rule 20” — as an exception to Rule 137.
Rule 137 is a different power. It is the Controller’s general power to condone irregularities in procedure and permit amendment of documents. The 2024 amendment restricted that general power, while simultaneously replacing Rule 138 with a clean, unrestricted power to extend and condone for six months.
Read quickly, the notification looks as though national phase entry is still excluded — because the familiar exclusion list is still there on the page. Read properly, the exclusion now attaches to Rule 137, and Rule 138 stands free of it with a non-obstante clause on top. Several published summaries of the 2024 amendment reproduce the exclusion list without noticing which rule it now sits under.
The Patent Office’s own e-filing system settles it
If the drafting were the only evidence, this would remain an argument. It is not.
Form 4 on the IPO e-filing portal now carries a “u/r 138” option alongside the older grounds. Selecting it opens a drop-down of the timelines to which Rule 138 may be applied, and that list expressly includes “National phase application entry (priority date)”. The portal displays the governing provision against it as r/w 20(4)(i), and the “Month of Extension” field accepts up to 6.
In other words, the Controller’s own filing system offers national phase entry as a Rule 138 ground, names the very sub-rule that used to be the bar, and permits the full six months. That is the Office implementing the amended rule as written.
What late national phase entry in India costs
This is the part applicants most often get wrong when budgeting, because the fee is charged per month of extension — not once. It appears in Table I of the First Schedule, at entry 4(v): “On request for extension of time under rule 138 (per month)”, payable on Form 4.
| Applicant | E-filing (per month) | Physical filing (per month) | Full 6 months (e-filing) |
|---|---|---|---|
| Natural person, startup, small entity or educational institution | ₹10,000 | ₹11,000 | ₹60,000 |
| Others, alone or with any of the above | ₹50,000 | ₹55,000 | ₹3,00,000 |
These are official government fees only; professional fees are separate. Two practical points follow. First, the cost scales with how long you wait, so a delay noticed in month 32 is a fraction of the cost of one noticed in month 37 — there is a direct financial reward for acting quickly. Second, a DPIIT-recognised startup or a small entity pays one-fifth of the standard rate, which often makes the difference between rescuing an Indian filing and abandoning it.
The request may also be made more than once within the six-month window, so an applicant who initially asks for two months and then needs more is not shut out — provided the total stays within six months and each request is made before that period expires.
How to file the request
The mechanics are straightforward; the judgement is in the drafting.
- File the national phase application itself, with the specification, and the usual Form 1, Form 3 and Form 5, together with the prescribed filing fees.
- File Form 4 selecting the “u/r 138” ground, choosing “National phase application entry (priority date)” and stating the number of months of extension sought.
- Pay the Rule 138 extension fee for each month claimed.
- Support the request with a candid statement of what went wrong, when it was discovered, and what was done on discovery.
Condonation is a discretion, not an entitlement
Rule 138 gives the Controller a power. It does not give the applicant a right, and it should never be treated as a routine extension of the deadline.
In practice, relief is granted where the applicant can show the failure was unintentional and that there was a continuing intention to pursue the application in India — an instruction that went astray, a docketing failure, an associate’s error, illness, a communication breakdown between applicant and agent. Plain negligence, or a considered decision not to file that is later regretted, sits at the other end of the scale and is unlikely to be condoned.
Because the request is discretionary, the quality of the explanation matters as much as the fee. A full and frank account, filed promptly, with documents supporting the sequence of events, is a materially better application than a bare request.
Our advice to clients is unchanged: treat 31 months as the real deadline and Rule 138 as a rescue, not a plan. Nobody should be relying on a discretion at the diary stage.
Where the older court decisions now stand
Applicants researching this often find decisions in which the Delhi High Court declined to extend the 31-month deadline, including matters brought by Diebold Self Service Systems and Humanity Life Extension LLC. Those decisions are frequently cited for the proposition that national phase entry in India can never be late.
They should be read for what they actually decided. Each construed the pre-amendment Rule 138 — the version that expressly excluded clause (i) of sub-rule (4) of Rule 20 from the Controller’s power and capped extensions at one month. On that text the outcome was close to inevitable, and the courts said so.
The rule those cases construed no longer exists. The 2024 amendment replaced it, removed the carve-out from it, and the Office has since built the ground into Form 4. The older authorities remain good law on the old text; they are not authority on the new one.
How India now compares internationally
India has moved from one of the strictest positions in the PCT system to a mid-table one. For an applicant who has missed the deadline in several countries at once, the practical ranking looks like this.
| Office | Standard deadline | Latest possible entry | Basis |
|---|---|---|---|
| Singapore | 30 months | 48 months | Extension of up to 18 months, as of right on payment |
| Indonesia | 31 months | 43 months | 12-month late entry with fee and written explanation |
| Canada | 30 months | 42 months | Reinstatement with a statement that the failure was unintentional |
| India | 31 months | 37 months | Form 4 under Rule 138, Controller’s discretion |
| Türkiye | 30 months | 33 months | Extended entry on payment |
| China | 30 months | 32 months | 2-month window on surcharge; nothing afterwards |
| Korea | 31 months | — | No remedy |
| Mexico | 30 months | — | No remedy |
If you are working out where a lapsed international application can still be filed, our PCT national phase deadline calculator computes every one of these dates from your priority date and flags which routes are still open.
Frequently asked questions
Can a national phase application be filed in India after 31 months?
Yes. Since 15 March 2024 the Controller may condone a delay of up to six months under Rule 138 on a request in Form 4, so an application may be filed up to 37 months from the earliest priority date. The request must be made before that six-month period expires, and the Controller may refuse it.
What is the fee for a Rule 138 extension in India?
₹10,000 per month of extension for a natural person, startup, small entity or educational institution, and ₹50,000 per month for other applicants, on e-filing. Physical filing costs ₹11,000 and ₹55,000 respectively. The full six months therefore costs ₹60,000 or ₹3,00,000 in official fees.
Is the extension automatic once the fee is paid?
No. Rule 138 confers a discretion on the Controller. Paying the fee does not secure the extension — the applicant must satisfy the Controller that the delay warrants condonation, ordinarily by showing the failure was unintentional and that there was a genuine intention to pursue the application.
Can the request be filed more than once?
Yes. The proviso to Rule 138 allows a request to be made any number of times within the six-month period, so an applicant may seek a further extension provided the total does not exceed six months and each request is made before the period expires.
Does Rule 138 apply to other patent deadlines as well?
It applies broadly. The rule speaks of “the time specified for doing any act or taking any proceeding” under the Patents Rules, and the Form 4 drop-down offers a range of grounds. Its reach is a question to be tested timeline by timeline, and the exclusions in the new Rule 137(2) restrict the Controller’s separate general power under Rule 137.
What happens if 37 months has already passed?
The application cannot be brought into the Indian national phase. The international application will have published at 18 months, so the disclosure is prior art against any fresh filing for the same invention. At that point the realistic options lie outside India, in the jurisdictions that still permit late entry.
If you have missed the date
Move quickly — the fee scales by month, and the strength of a condonation request weakens the longer the gap between discovering the failure and acting on it.
Send us the international publication number and the earliest priority date and we will confirm, within 24 hours, whether the Indian filing can still be made, what the Form 4 request should say, the official fees payable for the months involved, and which other jurisdictions remain open. Our professional fees for the work are quoted fixed, before you commit.
Sources
- Patents (Amendment) Rules, 2024, G.S.R. 211(E) dated 15 March 2024 — substituted Rule 138 (item 14), new Rule 137(2) (item 13) and Table I of the First Schedule, entry 4(v).
- Patents (Amendment) Rules, 2024 — WIPO Lex
- Patents Rules, 2003, Rule 20(4)(i) — time limit for national phase entry.
- Form 4, IPO e-filing portal — “u/r 138” ground, “National phase application entry (priority date)”, provision r/w 20(4)(i).
This article is general information on Indian patent procedure and is not legal advice. Rules, fees and Office practice change, and condonation under Rule 138 is discretionary. Confirm your position with a registered patent agent before acting, or before deciding not to act.