The term Post-Dating with respect to Patent law means shifting date of filing patent application to the later date. There are specific reasons for which the applicant desires to post-date the patent application. Provision of post-dating a patent application is available in other countries like New Zealand and United Kingdom. However, the US patent law does not have any provision for post-dating of patent application.
In Indian Patents Act 1970, there is a mention of post-dating in Section 9 [Provisional and Complete specifications] and Section 17 [Power of Controller to make orders respecting dating of application].
Applicant can request the Controller to post-date the application under Section-9, after filing & before the grant of the patent. The date of post-date shall be specified, and the Controller may direct that the application shall be post-dated. Such post date shall not be requested or made for a date later than 6 months from the date on which it was actually made or would, but for the provisions of this sub-section, be deemed to have been made. Applicant shall file complete specifications within 12 month of filing provisional application. On the request of applicant, the Controller may cancel the provisional specification and post-date the application to the date of filing of the complete specification.
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Date of filing Provisional application: 5th June 2009
Date of filing Complete application: 15th October 2009
By postdating under section 9, Priority date could be shifted to 15th October 2009
Postdating can’t be requested beyond 6 months from date of filing
In Standipack Pvt. Ltd. Vs. Oswal Trading Co. Ltd. (AIR 2000 Delhi 23, 80 (1999), wherein the judge while considering the provisions of postdating clearly stated in paragraph 8 it was held that the postdating of the patent can be done only to the date of filing of the complete specifications. Where a complete specification has been filed in pursuance of an application for a patent accompanied by a provisional specification or by a specification treated by virtue of a direction under sub-section (3) as a provisional specification, the Controller may, if the applicant so requests at any time before [grant of patent], cancel the provisional specification and post-date the application to the date of filing of the complete specification.
U/S 17 [Power of Controller to make orders respecting dating of application], the application for patent may be post-dated to a date not later than six months from the date of application on a request made by the applicant at any time before the grant of patent along with the prescribed fee as given in first schedule. However, this provision will not apply if the application is deemed to be abandoned.
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Date of filing application: 5th June 2009
Postdating can’t be requested beyond 5th December 2009 (6 months from date of filing)
There is no specific form for post-dating the application and hence the request for post-dating can be filed through Form-30 to post-date the application.
Applicant may be required to post-date the application under specific circumstances. If the applicant has filed provisional application, within 12 months the complete application shall be filed, else, the application shall be deemed to be abandoned. However, if the information to file complete application is not ready or there is some financial crisis, the applicant can post-date the application to the maximum time of 6 months and this helps him to extend his deadline to file complete application. It is interesting to note here that the post dating as an option can be availed to post-date the date of filing complete application also if the applicant claims priority date by filing complete application. This may give extra time to file PCT application, if needed.
Even though post dating is helpful for the applicant in few circumstances, it could be very risky at times. After filing patent application, if the applicant has disclosed the invention in public by in any way, followed by post-dating of the application, this might destroy novelty of the invention. Therefore, the applicant shall opt for post-dating the application after calculating the risk.
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