Secrecy of Direction for Defence Purpose under Patent Act in India

What Is An Invention?

The Cambridge dictionary states that Invention is something that has never been made before or the process of creating something that has never been made before.[1] An invention uses technology to solve a specific problem. The technical features of an invention have a function through which the problem – the purpose of the invention – is solved. 1

In simple language, an invention is the creation of something new that has not been created before.

Relationship Between A Patent & Invention

Patents and Inventions have a very deep relationship so to say. The patent’s sole purpose is to give the creator of an invention, rights over it and protect it from being misused by others. The patent literally is a licence conferring a right over an invention for a set period, with the right to the sole use and the exclusion of others. 

In other words, to be able to use one’s invention to the fullest the existence of a patent is necessary. It is only possible to legally claim damages for stolen inventions if the creator has a patent because the patent shows proof of ownership of the creation. Thus , anyone who tries to steal or misuse the invention can be held guilty.

The Patent Act, 1970

The Patent Act of 1970 in India was passed in the year 1970 and went into effect on April 20, 1972. The Act was revised in 2005, allowing the product to be used in all technologically connected domains, including those involving food, pharmaceuticals, chemicals, and other microbes. The Act specifies which inventions can and cannot be patented.

The Patent Act of 1970 is divided into numerous chapters, each of which has numerous sections. Chapter Vll of the Act runs from Section 35 through Section 42. The legislation’s measures for protecting particular inventions’ confidentiality are covered in this section. 2

Secrecy of Direction for Defence Purpose under Patent Act in India

Any invention the authorities deem crucial to the defence is subject to confidentiality rules. During the time period during which the secrecy instructions are in effect, the invention’s specifics are not made public, and a patent may not be awarded.

In India, Section 35 of the Patents Act,1970 talks about the secrecy provisions or directions relating to the inventions which are relevant for defence purposes.

35 . Secrecy directions relating to inventions relevant for defence purposes. – 3

1. Where, in respect of an application made before or after the commencement of this Act for a patent, it appears to the Controller that the invention is one of a class notified to him by the Central Government as relevant for defence purposes, or, where otherwise the invention appears to him to be so relevant, he may give directions for prohibiting or restricting the publication of information with respect to the invention or the communication of such information 98 [***].

2. Where the Controller gives any such directions as are referred to in sub-section (1), he shall give notice of the application and of the directions to the Central Government. The Central Government shall, upon receipt of such notice, consider whether the publication of the invention would be prejudicial to the defence of India and if upon such consideration, it appears to it that the publication of the invention would not so prejudice, give notice to the Controller to that effect, who shall thereupon revoke the directions and notify the applicant accordingly.

3. Without prejudice to the provisions contained in sub-section (1), where the Central Government is of opinion that an invention in respect of which the Controller has not given any directions under sub-section (1), is relevant for defence purposes, it may at any time before 99 [grant of patent] notify the Controller to that effect, and thereupon the provisions of that sub-section shall apply as if the

According to the Act, no resident of India may apply for the awarding of a patent for any invention for which he or she has not obtained the controller of patents’ written consent[3]. Before issuing such clearance for an innovation relating to atomic energy or defence purposes, the patent controller must get the central government’s approval. The controller of grants may issue instructions for prohibiting or limiting the publication of information with respect to the invention or communication of such defence information if the Central Government has not granted permission and the controller determines that the information is so relevant to them (related to defence).

Explanation of Subsection 2 & 3 of Section 35

In this subsection it is stated that the controller as mentioned in subsection 1 of section 35, shall provide notice of the application of the directions to the central government and when such notice is received by the central government, they shall consider whether the publication of invention will be harmful or prejudicial to the defence of India and if it is found by the government that such publications are not harmful to the defence of India, the government gives notice to the controller and then the controller revokes the direction given by him and notifies the applicant accordingly.

Subsection 3 of Section 35 states that if the central government feels that the invention is important and the controller has not given directions for that particular invention, the central government may at any time direct the controller to give notice and the controller shall give notice to the central government as per the directions issued by them.

Conclusion

The reason or motive behind putting up this provision in the Patent Act is related to the protection of National security. As mentioned in section 35, the decision is made by the central government after carefully analyzing the patent application and gauging the function and feasibility of the invention the need to keep secrecy or not is decided.

Therefore, any invention which is going to be an asset for the country and likewise dangerous to disclose must be particularly protected since it is compulsory for all patents to be published. If the secrecy is breached the culprit must be given severe punishment.

Footnotes

  1. https://www.ige.ch/en/protecting-your-ip/patents/patent-basics/what-is-an-invention
  2. https://lawcirca.com/secrecy-provisions-for-certain-inventions/#:~:text=Secrecy%20provisions%20apply%20to%20any,not%20disclosed%20to%20the%20public.
  3. Section 35, The Patents Act 1970

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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