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The Indian Patent Office and Secrecy Directions

December 3, 2018 Intellectual Property, Patents 0Comment

First Publication Date: 16th August 2010

As per Section (35) of the Patents Act, 1970, the Controller may notify a patent application (i.e. a patent application before the grant/refusal) as a secret. The patent application may be of a class notified by the Central Government as relevant for defense purposes or may be up to the discretion of the Controller. The patent applicant is further prohibited from publishing information related to the patent application or communicating information related to the patent application to any third party. The patent application is then forwarded to the Central Government for consideration, whether the public disclosure of the content in the patent application will be prejudicial to the national interests of India. If the Central Government agrees with the opinion of the Controller, the restrictions placed on the patent applicant by the Controller will continue to be in force. If the Central Government is of the opinion that the public disclosure of the content in the patent application will not be prejudicial to the national interests of India, then the Central Government instructs the Controller to lift the restrictions placed on the patent applicant. Further, the Central Government may notify the Controller at any point of time before the grant of a patent that a patent application is relevant for defense purposes and the directions of the Controller, as listed above, will come into force.

As per Section (37) of the Patents Act, 1970, a patent application under secrecy directions may not be refused by the Controller. Further, the patent application may proceed up to the grant of a patent, but the patent will not be granted and the order of grant of the patent will also not be published. If the patent application has been found in order for grant of the patent when the secrecy directions are in force, then the Central Government or any third parties designated by the Central Government may use the invention covered by the patent application for purposes of the Central Government, while considering the patent application as a granted patent. If the Central Government is of the opinion that the patent applicant suffered due to the secrecy directions in place on the patent application, then the Central Government may pay the patent applicant a suitable compensation, which depends on the novelty of the invention, utility of the invention and the purpose of the invention. Also, the decision to place secrecy directions may not be appealable to the Controller or to any Court (as per Section 41).
As per section (36) of the Patents Act, 1970, the Central Government have to review the secrecy directions every six months or on request by the patent applicant.
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