Generally, a patent application is published in official website of the patent office after expiry of 18 months from date of filing or date of priority, whichever is earlier. In case of the inventions, which are considered by Central Government as relevant for national defence and security, Patent Act 1970provides for secrecy directions, meaning that such inventions shall not be published till the time it is considered relevant for national defense.
According to Section 35 [Secrecy directions relating to inventions relevant for defense purposes],
- In case it appears to the Controller that the invention falls in one of a class notified to him by the Central Government and is relevant for defence purposes, he may give directions for prohibiting or restricting the publication of information with respect to the invention or the communication of such information.
- Once such secrecy direction is given by the Controller, he shall give notice of the application as well as the directions to the Central Government. The Central Government shall decide whether the publication of the invention would be prejudicial to the defence of India or not. If the publication of the invention doesn’t appear to be so prejudice, notice to the Controller shall be given by the Central Government; the Controller shall revoke the directions and notify the applicant accordingly.
- In case the Central Government is of opinion that an invention in respect of which, the Controller has not given any directions is relevant for defense purposes, it may at any time before the grant of patent notify the Government. If the invention belongs to one of the class notified by the Central Government, the provisions of secrecy directions apply and Controller shall give notice to the Central Government of the directions issued by him.
Section 36 [Secrecy directions to be periodically reviewed], explains that the question whether an invention in respect of which directions have been given continues to be relevant for defence purposes shall be reconsidered by the Central Government at intervals of 6 months or on a request made by the applicant. If request of the applicant is found to be reasonable by the Controller or if it appears to the Central Government that the publication of the invention would no longer be prejudicial to the defence of India or in case of an application filed by a foreign applicant, it is found that the invention is published outside India, it shall give notice to the Controller to revoke the direction and the Controllers, shall revoke the directions previously given by him. The result of every re-consideration shall be communicated to the applicant within prescribed time and manner (within 15 days of the receipt of the notice by the Controller).
The result of every re-consideration of secrecy direction by Central Government are communicated to the applicant within 15 days of the receipt of the notice by the Controller, under Rule 72 [Communication of result of reconsideration under section 36(2)].
Section 37 [Consequences of secrecy directions] saysthatas long as the secrecy directions are in force, the Controller shall not pass an order refusing to grant of the patent. The orders passed by the Controller in this regard cannot be appealed. The application may proceed up to the stage of grant of the patent, but the application and the specification found to be in order for grant of the patent shall not be published, and no patent shall be granted in pursuance of that application.
- Where a complete specification for an invention in respect of which directions have been given (Section-35) is found to be in order for grant of the patent during the continuance in force of the directions, then:
- If during the continuance in force of the directions, any use of the invention is made by or on behalf of, or to the order of the Government, the provisions of sections 100, 101, 103 shall apply in relation to that use as if the patent had been granted for the invention and
- If it appears to the Central Government that the applicant for the patent has suffered hardship due to secrecy directions, the Central Government may make to him reasonable payment by way of solatium having regard to the novelty and utility of the invention and the purpose for which it is designed, and to any other relevant circumstances.
- Where a patent is granted in pursuance of an application in respect of which directions have been given (Section-35), no renewal fee shall be payable in respect of any period during which those directions were in force.
There is prescribed time to perform a particular task under this Act e.g., prescribed time to pay examination fee is within 48 months from date of filing or priority date, whichever is earlier. But when secrecy direction is imposed and later revoked, the Controller may extend the time within which any step or any act shall take place under section 38 [Revocation of secrecy directions and extension of time], The time line for paying examination fee is 48 months from date of filing but if the secrecy directions were imposed on the application, the Controller may extend this time line of 48 months.
Section 39 [Residents not to apply for patents outside India without prior permission], says if the applicant is resident of India but wants to file patent application in foreign country, it is important that he either files application in Indian Patent Office and waits for 6 weeks to receive any objections or takes permission from Indian patent Office to file patent application in foreign country.
- Section-39 is one of the important Sections of the Act which says that the applicant who is resident of India and interested in filing application in foreign country shall:
- Either file application first in India before foreign filing and wait for 6 weeks to receive any objections from the Controller or
- Shall take permission from the Controller on Form-25 [Request for permission for making patent application outside India] before filing application in foreign country in order to safeguard national defense and security.
- There shall not be any secrecy direction imposed on the application in relation to the application in India, or all such directions have been revoked.
- If the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permission to file patent in foreign country without the prior consent of the Central Government.
- This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.
Under Rule 71 [Permission for making patent application outside India under section 39], the request for permission for making patent application outside India shall be made in Form-25 [Request for permission for making patent application outside India]. The time within which the Controller disposes of such request shall ordinarily be within a period of 21 days from the date of filing of such request. In case of inventions relating to defense or atomic energy, period of 21 days shall be counted from the date of the receipt of consent from the central government.
Under Section 40 [Liability for contravention of section 35 or section 39], applicant shall not disobey any direction by the Controller under:
- Section-35 [Secrecy directions relating to inventions relevant for defense purposes] or
- Section-39 [Residents not to apply for patents outside India without prior permission]
If applicant violates any of the direction under Section 35 or 39, the application of patent is:
- Deemed to be withdrawn or
- If the patent has been granted already, it is deemed to be revoked.
All orders of the Controller giving directions as to secrecy as well as all orders of the Central Government under this Chapter shall be final and shall not be called in question in any court on any ground [Section 41: Finality of orders of Controller and Central Government].
Section 42 [Savings respecting disclosure to Government] explains that even if the application has been imposed secrecy direction and such application shall not be disclosed, the Controller can disclose information concerning the application or a specification filed to the Central Government for the purpose of the application or specification being examined for considering whether an for secrecy direction should be made or whether an order so made should be revoked.
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