Secrecy provisions for certain inventions

Secrecy provisions for certain inventions

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What is ‘Invention’?

According to the Cambridge dictionary, Invention is something that has never been made before or the process of creating something that has never been made before.[1]

In layman’s terms invention is the creation of something new that has not been created before.

The patent in a licence conferring a right or title for a set period, with the right to the sole use and exclusion of others. 

In India, there is The Patent Act 1970, which was passed in the year 1970 and came into force on 20 April in the year 1972. The Act was amended in the year 2005, in which the product was extended to all the fields which were related to technology like foods, drugs, chemicals, and other microorganisms. The Act provides what inventions can be patented and what cannot. 

The  Patent Act,1970 contains many chapters and many sections under these chapters. The Act contains chapter Vll which starts from Section 35 to Section 42. This section of the legislation deals with the provisions for the secrecy of certain inventions.

Secrecy provisions apply to any of the inventions which the authorities feel important for the defence. The duration when the secrecy directions are applicable, the patent may not be granted and the details of the invention are also not disclosed to the public.

Section 35 of the Patents Act,1970: This section of the Act deals with the secrecy provisions or directions relating to the inventions which are relevant for the defence purposes.[2]

The Act states that any resident of India is not allowed to apply for granting of a patent for any invention for which he/she has not got the written permission of the controller of patents[3]. The controller of patents needs to obtain consent from the central government before granting such permission for an invention related to defence purpose or atomic energy. If the permission is not received from the Central Government, the controller of grants if he feels that the information is so relevant to them (related to defence) than he can give directions for prohibiting or restricting the publication of information with the respect to the invention or communication of such defence information.

Subsection 2 of Section 35: This section states that the directions which are given by the controller as mentioned in subsection 1 of section 35, the controller shall give notice of the application of the directions to the central government and when such notice is received by the central government, the central government 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 that is important and the controller has not given directions to that particular invention, the central government at any time can direct the controller to give notice and the controller shall give notice to the central government as per the directions issued by them.

Section 36 of the Patent Act 1970: Secrecy directions to be periodically reviewed

The section says that the question whether an invention, related to which the directions have been given under Section 35, it continues to be relevant for defence purposes, then it shall be reconsidered by the central government in every six months or it should be reconsidered when the applicant makes the request, and the controller finds the request reasonable and if by such reconsideration the central government feels that the publication of the invention is no longer harmful or prejudicial to the defence of India and if the application is filed by a foreign applicant and it is found that the invention is published outside India, the notice shall be given to the controller to revoke the direction and controller also revokes the direction which is given by them previously.

Subsection 2 of Section 36 states: The result of every reconsideration should be communicated to the applicant within the prescribed time and in the prescribed manner.

Consequences of Secrecy directions

Section 37 deals with the consequences of Secrecy directions.

The section states that as long as any directions which are under section 35 are in force with respect to an application:

  • The controller shall not pass an order of refusing to grant the same
  • No appeal shall lie from any order of the controller[4]

Although it has been provided that application may be subject to the directions which is proceeding to the stage of granting patent but the application and specification which is found in order of granting the patent shall not be published and no Patent shall be granted in respect to that application.

As per this section, a patent application under secrecy directions may not be refused by the Controller. Although the patent application may reach the stage, the patent is neither granted nor the order of the grant of a patent shall be published. If the application of the grant of patent is found when the secrecy directions are in force then the central government or any third party which has been authorised by the central government may use the invention which is covered under Patent Application for the use or purpose of Central Government (considering that application of patent is a granted patent). And if the Central Government finds that the applicant of the patent has been suffered due to the Secrecy directions and not because of the patent application then the Government pays an applicant a suitable amount of compensation which usually depends upon:

  • The novelty of the invention
  • The utility of the invention
  • 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).

Subsection 3 of section 37 says that when a patent is granted in pursuance of an application in which directions have been given under section 35, no renewal fees shall be payable during the period when the application was in force

Section 38: Revocation of secrecy directions and extension of time

Any direction which is given under section 35 of the Patent Act is revoked by the controller then, notwithstanding any provision of the act which specifies the time for any step which should be taken within that time frame, the controller may subject to such condition, if the controller thinks fit to impose or extends to the time limit for doing anything which is required.

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

Section 40 Liability for contravention of section 35 or Section 39

Section 41 Finality of orders of the controller and Central Government

Section 42 Savings respecting disclosure to the government.

Contravention of secrecy provisions relating to certain inventions

The Patent Act 1970 Chapter XX penalties, Section 118 states the penalty for the contravention of secrecy provisions relating to certain inventions

It says that if any person fails to abide by any directions which are given under Section 35 of the act or make or cause to make an application of the patent which is in contravention to Section 39 of the act he/she shall be punishable with imprisonment for a term which may extend to two years or with fine or with both that is imprisonment and fine.

The secrecy provisions are made to maintain the confidentiality of certain inventions which is done by an individual. The secrecy provisions are specially made to maintain the defence secrecy of India. The patent or application of patent is granted only when Controller and the central government agree to it after looking into all the factors. If any individual does not comply with the Secrecy provision of Patent of an invention then he/she is liable for the punishment which is clearly mentioned in the patent Act chapter 20. Not only this, Section 35 and Section 36  and of the Patent Act are very important and if any individual does not comply with these sections then also he/she is liable for the punishment.

Sources:

http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps35.html

Endnotes

  1. Cambridge dictionary
  2. The patent Act, 1970, Intellectual Property Rights
  3. The Controller General (CG), is one who supervises the administration of the Patents Act, the Designs Act, and the Trade Marks Act, also advises the Government on matters relating to these subjects.
  4. The Patent Act 1970

Aarushi Agarwal - ILS Law College

Arushi Agrawal

Author

Arushi hails from ILS Law College, Pune and she spends most of her time researching on new topics, art and craft, painting. Her Interest area lies in criminal and family law. For any clarifications, feedback, and advice, you can reach her at agrawalarushi463@gmail.com

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