The statement and undertaking under Section 8 is a form, Form 3, that tells the Indian Patent Office about your foreign patent filings for the same invention. It has three deadlines: six months from your Indian filing, three months from the first examination report, and two months from a Controller’s direction. If you miss one, you may still fix it, depending on the route, the delay and your evidence.
The duty stays with you even when your agent files the form. It applies when you have a patent application pending in India and you, or someone you are linked to as described below, is pursuing a patent abroad for the same or substantially the same invention. Getting it wrong can put the application at risk, and after grant it can be used to attack the patent.
Quick answer: Form 3 has three separate deadlines: six months from the Indian filing date, three months from the date the first examination report is issued, and two months from a Controller’s direction. If you miss one, you can ask the Controller for relief. Two routes use Form 4. Two use a short petition under Rule 6. All are up to him, and none is automatic. Rule 137 is closed for relief under Rule 12(5).
What the statement and undertaking under Section 8 asks of you
Section 8 asks you to do two things. First, tell the Patent Office about every foreign application for a patent that you are pursuing for the same or substantially the same invention. Second, promise to tell it in writing about any new one filed later, up to grant, within the time the Rules set.
You must list your own foreign filings, whether you file alone or with others. You must also list a filing by someone you get your ownership from, or someone who gets ownership from you, but only if you know about it. A filing by an unrelated party on the same invention does not count, whether you know of it or not.
Take a group company. If it is pursuing a foreign filing and your ownership of the Indian application comes through it, you must list that filing if you know about it. A sister company under the same parent usually does not count. Do not treat “I did not know” as a strategy. Keep a register of filings across the group, because in a dispute the question will be what you knew.
The Controller, the Patent Office official who decides your application, can also ask how a foreign application is going. He can do this at any time between your Indian filing and grant or refusal, and you must give the information that is available to you. The Act leaves the details and the time to the Rules. The only Rule that uses this power lets the Controller direct you to file a fresh Form 3 within two months.
So if the Patent Office asks you for foreign filing details, treat it as that direction, as a precaution, and count two months from the date of the communication. If it asks for something else or gives a different time, ask the office which applies. Nothing in the law limits the Controller to one direction, so put each one in your diary separately.
The three Form 3 deadlines
There are three clocks. Each starts from a different event, so put each in your diary as its own entry.
Clock 1 is six months from your Indian filing date. For a PCT national phase application, count from the day you actually file in India, not from the international filing date or the priority date. The Indian filing can fall up to thirty-one months after the priority date. Filing early does not shorten the six months. It only brings the deadline forward in the calendar. This clock existed before 2024.
Clock 2 is three months from the day the first examination report is issued, not the day your agent receives or downloads it. The Patent Office rules call this report the first statement of objections. It is the same document. The form you file can list your whole foreign family up to that date, and no separate deadline is set for interim updates. The six months you have to put the application in order for grant also run from this date.
The same three months apply under ordinary examination and under expedited examination. Expedited examination is open, among other grounds, where India was named as the competent International Searching Authority, or chosen as an International Preliminary Examining Authority, in your PCT application. Being named or chosen is what counts, not whether India did the work.
Clock 3 is two months from a Controller’s direction to file a fresh Form 3. He must record his reasons in writing.
The 2024 amendment came into force on 15 March 2024. Before it, the update was due six months after each later foreign filing. It replaced that with the three-month clock and created the power to direct a fresh form. The request-for-examination period expressly protects older applications, but this rule has no such clause. So the new three-month and two-month provisions apply from that date to applications already pending.
| Trigger | Period to file Form 3 | Provision |
| Indian application filed (for a national phase entry, the actual Indian filing date) | 6 months | Rule 12(1A) and its Explanation |
| First examination report issued | 3 months from issuance | Rule 12(2), with Rule 24B(3) on ordinary examination or Rule 24C(8) on expedited |
| Controller directs a fresh Form 3, for reasons recorded in writing | 2 months from the communication | Rule 12(4) |
Missing a deadline: what you can still do
If a deadline passes, you can still ask for relief. Four routes are open and one is closed. The four open routes are all up to the Controller, and none is automatic. Start by writing down how late you are and why.
| Route | Use it when | Most extra time |
| Rule 12(5), on Form 4 | You missed a Form 3 deadline | 3 months |
| Rule 138, on Form 4 | You missed any deadline under the rules | 6 months |
| Rule 6(5), by petition | A Patent Office letter reached you late | Only the delay in delivery |
| Rule 6(6), by petition | War, a strike, a natural calamity, a communications outage or something like them caused your delay | The time a national emergency was in force, or 6 months from the deadline, whichever is less |
| Rule 137 | Closed for Rule 12(5) relief | None |
Rule 12(5) is the specific power for this duty. The Controller can excuse the delay, or give you more time, by up to three months in either case, despite anything else in the Rules. You ask on Form 4. The rule does not say you must ask before the deadline passes, so you can ask in advance or after the event.
The Rules call excusing a delay condonation, and Form 4 uses that word.
Rule 137 is the closed route. It lets the Controller fix a procedural slip that, in his opinion, can be put right without harming anyone, if he thinks fit and on terms he sets. But it is switched off for matters related to extending time or excusing delay under Rule 12(5).
Nobody has tested how wide “matters related to” is. So do not plan on describing a late Form 3 as a procedural slip to get around it. The other routes here are not affected.
Rule 138 is the general power. It applies despite anything else in the Rules to the time for doing any act or taking any proceeding. The Controller can give up to six months, on Form 4, and the power has no list of excluded rules. You must ask before the six months run out. If you notice the problem after they end, this route is gone. The rule does not say what the six months count from.
The natural reading, and the one the Patent Office uses for the similar working-statement power, is that the six months run from the day the deadline expires, as it stands when you ask. That is the original deadline if you took no extension, and the extended one if you did. Say your Form 3 was due on 15 April 2026. With no extension, you have until 15 October 2026. If you had extended it by three months to 15 July 2026, you have until 15 January 2027. Apply before that date. Inside that window you may ask any number of times.
Can you take the three months and then the six? The rules do not say. For working statements, the Patent Office’s Form 27 FAQ of 26 August 2024 says you can extend by three months under Rule 131(2) “and further for a period of up to six months” under the general power. That is a different form, and it does not give you an automatic nine months here. Treat it as unsettled. Plan on the original deadline, and ask before relying on it. Our PCT national phase article carries the same caution.
Form 4 is one form for several different extension powers, and each has its own period and its own fee.
Rule 6(5) covers a late letter. If a Patent Office document reaches you late, you can petition for the resulting delay to be excused. Petition straight after you receive it, explain what happened and attach proof. Relief covers only the gap between when you should have received it in the normal course and when it actually arrived. So it fixes a late-delivered examination report and nothing more. Keep proof of the date it arrived.
Rule 6(6) covers war, strikes, calamities and outages. It applies to war, revolution, civil disorder, a strike, a natural calamity, a general outage of electronic communications, or something similar, where you live or work. You petition with the facts and proof, and must show the Controller three things. The delay was caused by the event. It was serious enough to disrupt normal communication in your area. And you acted as soon as you reasonably could, and no later than one month after it ended. If a report simply arrived late, try Rule 6(5) first.
You also have a right to be heard. The law lets you ask for a hearing before the Controller uses a discretion against you, but only if you ask at least ten days before the time limit for the proceeding ends. Separately, before he uses a discretionary power likely to hurt an applicant, he must give a hearing, usually on ten days’ notice, without being asked.
So when you file Form 4 and the outcome is uncertain, ask for a hearing early and in writing. The request you make yourself is the one with a deadline. It is unclear what that deadline attaches to once the original period has already run.
Form 3 itself has no fee. On Form 4, the e-filing fee is charged per month of extension or delay excused. For the three-month route it is Rs 2,000 for a natural person, startup, small entity or educational institution, and Rs 10,000 for everyone else. For the six-month route it is Rs 10,000 and Rs 50,000.
So catching a slip with a Rule 12(5) request is much cheaper. The six-month route costs five times as much per month, and it is still not guaranteed. These figures were read from the official fee schedule in October 2026, and paper filing costs about 10 per cent more.
Three things to watch on fees. First, the fee schedule words the three-month entry “under sub-rule (4) of rule 12”. That sub-rule is the Controller’s power to direct a fresh form, not an extension right. The extension power is Rule 12(5), so cite that and pay under that entry.
Second, startups, small entities and educational institutions get the lower rate only if they file Form 28, a declaration, with every document that carries a fee. A natural person does not need it.
Third, if a patent agent is on file, you must file electronically, so the e-filing fee is the one that applies. If an original document is called for, produce it within fifteen days or it is treated as not filed.
The undertaking does not stop at the examination report
Your undertaking covers every later foreign application for the same or substantially the same invention, including related-party filings you know of, up to grant. The Form 3 you file after the first examination report meets the deadline. It does not end the undertaking, and the rules set no period for later filings. That leaves a gap between your reply to the examination report and grant.
A new foreign filing in that gap is still covered by your undertaking, but no deadline applies to it. File an updated Form 3 promptly once you know about it. Do not wait for a pre-grant review.
Two things are not new filings: a foreign grant on an application you already listed, and an amendment to it. They are status changes on an existing entry. The rules set no regular update after the examination-report filing. So review your foreign family before grant, put important developments on record, and follow any direction from the Controller. Form 3 has no fee, so this costs only time. If different firms handle different countries, agree in writing how new filings reach your Indian team.
It is worth closing the gap. A disclosure objection is argued on what the file shows. If you leave the gap open, an opponent can raise the missing disclosure within a year after the grant is published, and a defendant can raise it for the rest of the patent’s life.
What non-compliance costs
The first cost falls on the application itself, and people underestimate it. An unanswered disclosure objection can put the application at risk long before any opponent appears.
Under Section 15, if the Controller is satisfied that the application, or any document filed for it, does not meet the requirements of the Act or the Rules, he can refuse it. Or he can require you to amend it to his satisfaction and refuse it if you do not.
Under Section 21(1), the application is also treated as abandoned if you do not meet the requirements in time. The time is six months from the day the first examination report is issued. The Controller can extend it by three more months if you ask on Form 4 and pay the fee. By e-filing, that is Rs 1,000 per month for a natural person, startup, small entity or educational institution, and Rs 4,000 per month for everyone else. Expedited examination has the same six plus three months, at a higher fee.
When must you ask for the extra three months? Until 2024, before the original six months ended. The 2024 amendment changed the wording to “before expiry of the period specified herein”, and it is unclear which period that means. Neither the office nor the courts has confirmed it either way. So ask before the original six months end. That is cautious practice. It does not mean the law has been confirmed to require it.
After grant, Section 8 gives one ground, with two parts, and the parts are tested differently. Part one is not disclosing the information Section 8 requires. In its own words this part has no test of materiality or knowledge. Knowledge matters only for filings by a related party: someone you get your ownership from, or who gets ownership from you. Those count only if you know of them. Your own foreign filings carry no knowledge test at all. A reply to a Controller’s request for details, under the power described earlier, is limited to the information available to you.
Part two is giving information that was false in any material particular, to your knowledge. So a form filed on time but materially false to your knowledge is also exposed. This is where a defence starts: the words “material particular” and “to his knowledge”.
Either part can be raised in three places. Any person can oppose before grant, once the application is published, under Section 25(1)(h). Any person interested can oppose within one year after the grant is published, under Section 25(2)(h).
The third place is revocation. A person interested, or the Central Government, can ask the High Court to revoke the patent under Section 64(1)(m), or a defendant can raise it as a counter-claim in an infringement suit.
Revocation on this ground is not automatic. The Delhi High Court has held that whether the omission was deliberate, and whether the missing information was material, are questions for trial on evidence. Our PCT national phase article names the case in full. That does not make deadlines optional. A granted patent with an unresolved disclosure defect stays exposed for the rest of its term.
What goes into Form 3, and the version trap
Form 3 is one form with two parts: a statement and an undertaking. For each foreign application it asks for the country, the application date and number, its status, the publication date and the date it was disposed of. If you have no foreign applications, a declaration says so instead. Strike out whichever part does not apply.
Five numbered items sit outside that table and are easy to miss. Item 2 asks for any joint applicant’s name, address and nationality, with your Indian application number and date. Item 3 asks for the name and address of the person the rights in the Indian application have been assigned to, if there has been an assignment. That is about the Indian application, not the foreign family. Items 4 and 5 ask for the signature of the applicant or an authorised registered patent agent, and the signer’s name.
List every foreign application for a patent for the same or substantially the same invention that you are pursuing, alone or jointly. Add those you know are being pursued by someone you get your ownership from, or who gets ownership from you. National and regional phases, convention applications and foreign divisionals all count. In practice, also record the PCT application the family came from.
Listing applications that have lapsed, been abandoned or been refused is the safer course. The form has status and disposal columns, so show the outcome and do not delete the entry. A utility model or similar right that is not a patent application could go either way. List it. It costs nothing, and leaving it out is the position you would have to defend.
Use the current prescribed form. The 2024 version asks for the Indian application number and ends with a date of disposal column. Check your template against it, including any template inside a form generator, not only your last filing. An old template risks a formal objection and a lost cycle.
One thing looks wrong but is not. The form’s reference line says “See sub-rule (2) and (3) of Rule 12”. Sub-rule (2) is the three-month period. Sub-rule (3) is now the Controller’s power to use accessible and available databases, not a duty on you. The line does not mention the six-month period or the two-month direction, and the 2024 form still carries it. Use the form for all three filings anyway. The deadlines come from the Rules, not from that line.
Where Section 8 compliance fails in practice
Most failures are diary failures, not legal mistakes. Check these six:
- Count the update from the day the examination report was issued, not the day you received it.
- For a national phase application, count six months from the Indian filing date, not the international filing date.
- Treat each direction for a fresh form as its own two-month deadline. This power dates from 2024 and is missing from older guides.
- List every foreign application for the same or substantially the same invention, including ones already closed. The Controller may use accessible and available databases when considering information about applications filed outside India.
- Use the current form, including inside any document generator.
- Review your foreign family once more between your reply to the examination report and grant. No deadline will prompt you. Only a Controller’s direction will.
On an inherited portfolio, run these checks early. A defect costs far less to fix while the application is pending, when Form 3 has no fee, than to argue about after grant. For PCT applications, see our guide to the 31-month national phase entry. For extensions generally, see extension of time for Indian patent deadlines.
Frequently asked questions
15 April 2026. The three months run from the date of issue, not from receipt. If you cannot meet it, a Form 4 request under Rule 12(5) can extend or excuse the delay by up to three months, at the Controller’s discretion. If the report itself reached you late, try Rule 6(5).
Yes. Under Rule 12(2), the three months run from the date the first statement of objections is issued, under Rule 24B(3) for ordinary examination or Rule 24C(8) for expedited. The route does not change the Form 3 period.
On its words, yes. Rule 138 covers the time for any act under the Rules, has no exclusion list, and relief is up to the Controller. Apply before the six months end. The rule does not say what they run from. If you took no earlier extension, count from the original deadline. Whether Rule 138 can be used on top of the three-month Rule 12(5) extension is unsettled.
The undertaking covers foreign applications filed after your statement. A grant on an application you already listed is a status change, not a new filing. Rule 12 sets no regular update after the examination-report filing. Review the family before grant, put important developments on record and follow any direction. No fee is payable.
In practice, yes, and it costs nothing. On the words of Section 8(1), the duty applies when a foreign application is being pursued, so with none the provision does not bite. The form still has a declaration for this case. File it with the particulars table struck out.
No further period is set. Rule 12(2) gives three months from issue of the first examination report and no fresh period for an application filed after those three months. The undertaking still runs to grant, so file the updated form promptly once you know about the filing.
No. The statement and undertaking is filed for an application, so each pending Indian application, including a divisional, has its own duty and its own deadlines. The foreign details are often the same, but the filings are not interchangeable and the deadlines run separately.
Cite the power you are using. For a three-month extension or excuse, that is Rule 12(5). Name the deadline you want extended. Expect a mismatch: Form 4 itself cites Rule 12(5), but the fee schedule entry says “sub-rule (4) of rule 12”. Cite 12(5) and pay under that entry.
The application itself is at risk, long before any opponent appears. You have six months from issue to put it in order, extendable by three months on a Form 4 request with a fee. As a precaution, ask before the original six months end. Section 15 lets the Controller refuse the application. Section 21(1) treats it as abandoned if you do not comply in time.
List them. Section 8 is framed around applications you are pursuing. But the form has status and disposal columns, so you show the foreign family with its outcomes. Disclosing a lapsed, abandoned, withdrawn or refused application costs nothing and removes an argument an opponent would otherwise have.
This article explains the law on the statement and undertaking under Section 8 and Form 3 in India as at October 2026 and is for general information only. It is not legal advice. Government fees, forms, and procedures change; confirm current figures with the Indian Patent Office before you file. For advice on your specific invention, consult a registered patent agent.
Sources
- Patents Act 1970, section 8, information and undertaking regarding foreign applications: IP India, Act e-version, consulted October 2026
- Patents Rules 2003, rule 12, statement and undertaking regarding foreign applications: IP India, rule 12
- Patents (Amendment) Rules 2024, G.S.R. 211(E), 15 March 2024, which amended rule 12, inserted rule 137(2), substituted rules 131(2) and 138 and Table I of the First Schedule, amended rules 24B and 24C, and substituted Forms 3 and 4: gazette copy
- The First Schedule to the Patents Rules 2003, fees: official schedule, PDF
- Form 3, statement and undertaking, and Form 4, request for extension of time or condonation of delay: Form 3 and Form 4