Secrecy Of Certain Inventions Under Patent Act, 1970

Introduction

Secrecy of direction in this case basically refers to the restrictions that are placed on the publication of details of a patent. This is done for the defence purpose of the country because certain inventions may be used by the military or may put the national security at risk if revealed. Thus , for the sake of defense sections 35-42 in the Indian Patent Act, 1970 deal with secrecy directions.

Provisions For Secrecy Of Certain Inventions

It is standard practise for patent applications to be made public on the patent office’s website 18 months after the earlier of the date of filing or the date of priority. Inventions that the Central Government determines are important to national defence and security may be subject to secrecy directions under the Patent Act of 1970, meaning that they cannot be made public until they are no longer classified as secret.

Section 35 states that [Secrecy directions relating to inventions relevant for defense purposes],

(1) If the Controller determines that the invention is in a category designated by the Central Government and has military applications, he can restrict or prohibit its public disclosure.

(2) When the Controller issues a directive to maintain confidentiality, he must inform the Central Government of both the application and the directive. The Central Government is responsible for determining whether or not the invention’s disclosure would compromise India’s security. It is the responsibility of the Central Government to notify the Controller if the publication of the invention does not appear to be so prejudicial, at which point the Controller will revoke the directions and notify the applicant.

(3) The Central Government may at any time before the grant of patent notify the Government if it determines that the invention in question is relevant for defence purposes and the Controller has not otherwise provided directions. The Controller is required to notify the Central Government of any secrecy directions he issues if the invention falls within one of the classes of inventions that have been notified by the Central Government.

According to Section 36 [Secrecy directions to be periodically reviewed],

Every six months or upon the applicant’s request, the Central Government will reevaluate whether or not an invention for which directions have been given remains relevant for defence purposes. If the Controller decides that the applicant’s request was reasonable, if it becomes clear to the Central Government that the invention’s publication would no longer be prejudicial to India’s defence, or if, in the case of an application filed by a foreign applicant, it is discovered that the invention is published outside India, the Central Government must notify the Controller that he must reverse his previous decision. Every reconsideration’s outcome must be relayed to the applicant in a timely and appropriate fashion (within 15 days of the receipt of the notice by the Controller).

Within 15 days of the Controller receiving the notice, the result of any reconsideration of a Central Government secrecy direction is communicated to the applicant in accordance with Rule 72 [Communication of result of reconsideration under section 36(2)].

Section 37 [Consequences of secrecy directions] states that The Controller shall not issue an order refusing to grant the patent while the secrecy directions remain in effect. The decisions of the Controller in this matter are final and not subject to review. Even if the application and specification are found to be in order for grant of the patent, neither the application nor the specification will be published, and no patent will be issued in response to that application.

(1) 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:

a.While the directions are in effect, any use of the invention by, for, or at the direction of the government is subject to the same treatment under Sections 100, 101, and 103 as if a patent had been issued for the invention.

b.Taking into account the novelty and utility of the invention, the purpose for which it is designed, and any other relevant circumstances, the Central Government may make to him reasonable payment by way of solatium if it is determined that the patent applicant has suffered hardship as a result of secrecy directions.

(2) 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.

For example, the Act specifies that the examination fee must be paid no later than 48 months after the earlier of the date of filing or the priority date. The deadline for paying the examination fee is 48 months from the date of filing, but if the secrecy directions were imposed on the application, the Controller may extend this timeline by up to 48 months. This is done under section 38 [Revocation of secrecy directions and extension of time].

The other self explanatory provisions related to secrecy for certain provisions are as follows-

Section 38 [ Revocation of secrecy directions and extension of time]

In the event that the controller revokes a direction issued under Section 35 of the Patent Act, the controller may, at his or her discretion, impose such conditions as he or she deems appropriate, including but not limited to extending the time limit within which any action must be taken.

Section 39 [Residents not to apply for patents outside India without prior permission]

If an Indian citizen wishes to file for a patent on a technological innovation outside of India, they must first obtain a Foreign Filing License (FFL) under Section 39 of the Indian Patents Act, as amended. The need to apply for an FFL is not tied to a person’s nationality, but rather to the place and time of the invention’s inception. The Applicant will need a foreign filing licence if the invention was conceived or developed in India.

Section 40 [Liability for contravention of section 35 or Section 39]

Without prejudice to the provisions contained in Chapter XX, if in respect of an application for a patent any person contravenes any direction as to secrecy given by the Controller under section 35 or makes or causes to be made an application for grant of a patent outside India in contravention of section 39 the application for patent under this Act shall be deemed to have been abandoned and the patent granted, if any, shall be liable to be revoked under section 64.

Section 41 [Finality of orders of the controller and Central Government]

All orders issued by the Controller directing secrecy and all orders issued by the Central Government under this Chapter shall be final and shall not be challenged in any court on any basis.

Section 42 [Savings respecting disclosure to the government.]

To the extent necessary for the Central Government to determine whether an order under this Chapter should be made or whether an order so made should be revoked, nothing in this Act shall be construed to prevent the disclosure by the Controller of information concerning an application for a patent or a specification filed in pursuance thereof.

Conclusion

The Patent Act of 1970 comprises numerous chapters and numerous subsections. The Act has chapter Vll, which begins at Section 35 and ends at Section 42. This section of the law addresses the regulations governing the confidentiality of certain innovations.

Footnotes

1.https://www.origiin.com/2020/09/07/term-18-secrecy-directions-key-terms-of-patent-act/#:~:text=In%20case%20of%20the%20inventions,considered%20relevant%20for%20national%20defense.

2.https://www.bananaip.com/ip-news-center/indian-patent-office-and-secrecy/

3.https://www.lexorbis.com/to-file-or-not-to-file-patents-application-for-defence-purpose/

Aishwarya Says:

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