Sections 35-37: - Secrecy Directions (Indian Patents Act)

Transcript

hey there welcome back to yet another episode in the journey of demystifying the patents act over the course of earlier videos we used the term secrecy direction multiple times be it during the publication phase or the examination phase but we never got a chance to discuss in details in this video we will go over the provisions of secrecy directions in detail it all starts when an applicant files a patent application with the patent office this applicant could be indian applicant or a foreign applicant over the course of next few days few weeks or few months when the controller goes over the application and finds out that the invention contained in the specification belongs to a class as notified by the central government to be relevant to the defense purposes basically the invention is or appears to be relevant to defence purposes upon such findings controller issues a direction prohibiting publication or communication of any information pertaining to the invention and because publication is prohibited the application also doesn't move through the prosecution phase at the patent office controller issues such directions under section 35.1 in a sense controller has invoked secrecy provisions over the application as a next step the controller communicates with the central government by passing relevant information about the invention along with the directions issued by the controller and also seeks guidance of the central government with regards to the publication of the invention upon receiving such a direction from the controller central government or ministry of defense reviews the application reviews the invention to understand if the publication of invention will be detrimental to the defense of the nation the government may review the relevance of the invention for the defense purpose multiple times periodically every six months and after every such review the findings or opinions of the central government is provided to the controller who in turn is required to pass on the information to the applicant within 15 days so there could be one review or multiple reviews based on the nature of the invention and its relevance to the defense purpose on a given time at whatever stage the central government is of the opinion that the publication of invention will not be detrimental to the defense of the nation the central government provide clearance to the controller and the controller at such directions can revoke the secrecy provisions and thereafter the application can be taken up for further processing as this review process may take time so applicants are also provided with an option to send in a request or review request to the central government via controller to expedite the process or to look into it out of turn and upon receiving such request from the applicant the central government may review the invention out of turn as well and provide their opinion again to the controller these are the cases where the controller had invoked the secrecy provision there could be few scenarios where the controller may not have raised secrecy provisions for a particular application for which the central government is of the opinion that secrecy direction should be imposed in such cases the central government can send notification to the controller asking the controller to invoke secrecy provision regarding a particular application and as possible it could have happened that the application would have moved through the prosecution phase maybe in order for getting a grant but once such secrecy provisions are invoked the process is stopped and the application is not granted this was all about when a secrecy provision is invoked for an application so what are the impact of secrecy provisions over an applicant or an application so when a secrecy provision is invoked controller cannot issue any decision refusing grant of a patent similarly for those cases where the application had actually moved through the prosecution phase and maybe in order for a grant controller cannot grant the patent or cannot enable publication of the granted patent as per section 100 and the relevant sections government or any person authorized by the government can use the invention for their own purposes for applications which were found to be in order for grant but due to secrecy provisions cannot be granted such applications would be considered as granted application for the purpose of determining compensation that needs to be provided to the applicant who may be suffering because of the delay caused by the secrecy provision so government can reward or compensate them for the usage as if a patent was granted on it interestingly the renewal fee that becomes applicable from the second year onwards right and that you have to pay after the grant of the patent for all this duration for which the secrecy direction was in force you don't need to pay any renewal fee some saving grace finally with respect to any deadline with regards to any activity that you need to perform or with regards to any document that you need to submit extension of time is available as per rule 72 and section 38. we we have discussed this during request for examination also where how we get additional six months once the secrecy provisions are revoked so as per secrecy provision a specific direction is given by the controller to not publish or not communicate information pertaining to the invention what if an applicant doesn't comply with it how such how such situations are handled by the act so in case of non-compliance there are two sections which talks about how to deal with such non-compliances as per section 40 the patent application on which the secrecy provision was invoked and the applicant didn't follow it communicated it or filed an application outside india in such cases the pending application will be considered as abandoned or in case a patent was wanted then that patent can be revoked under section 64. we'll learn about it when we start the next phase of the video series along with that as per section 118 such an act is punishable with imprisonment for up to two years and or a fine enough deterrence for you to comply with the secrecy provisions in the interest of defense purpose of our own nation finally we discussed details regarding secrecy provisions as provided by section 35 36 and 37 in the next episode we will discuss a related topic a topic that deals with restriction imposed on indian residents for filing application in the foreign countries so i'll see you in the next video till then be good and take care