section-35-indian-patent-act
section-35-indian-patent-act

Section 35 of the Patents Act, 1970

Section 35 of the Patents Act, 1970 deals with secrecy directions related to inventions which might have any military or strategic importance to the country. This section gives the Central Government the machinery through which it can prevent inventions considered detrimental to national security if publicly disclosed. The provision makes the Controller of Patents competent to issue secrecy directions against the publication or communication of information related to inventions that may be of importance in relation to defence.

Detailed Analysis of Section 35 of the Patent Act

Section 35 of the Patent Act 1970  reflects the importance of national security in the patent system and safeguards India’s defence interests from external threats, while still recognizing the need for technological innovation in the country. Here’s the detailed breakdown of the section.

When Secrecy Directions May Be Issued ? (Subsection 1)

Notification by Central Government:

The Central Government shall notify the Controller of Patents on inventions that are considered significant for national defense. These can be military technologies, strategic materials, or any other innovation deemed dangerous to the nation, in case it is publicized.

Role of Controller

If, on reviewing the matter, the Controller feels that the invention is one falling in a class of inventions that would relate to defence or national security, he may make orders preventing or restricting publication of the invention or communicating any information directly or indirectly derived therefrom.

Scope of Application:

These instructions are for patents filed both prior and subsequent to the beginning of the Act. It aims to keep confidential any invention deemed significant enough to impact the nation's security if they so wish.

Know What are the Grounds & Procedure for Patent Revocation under Section 64 of Patents Act, 1970

Notice and Review by the Central Government (Subsection 2)

Notice to the Central Government:

Once the Controller gives an order of secrecy, he must inform the Central Government about the application and the orders he has given in respect of the invention.

Review by Central Government:

The Central Government is obligated to consider whether the publication of the invention would be prejudicial to national security. This means that it has to consider whether the public disclosure of the invention would be prejudicial to the defence of India.

Decision of Government Review:

If the Central Government feels that publication of the invention would not harm national security, it shall intimate the Controller. In this scenario, the controller will withdraw the secrecy directions and inform the applicant so that he can make public the invention.

Also, Check out What are Compulsory Licenses under Section 84 of The Patents Act 1970

Role of Government in declaring inventions for Defence Purposes (Subsection 3)

Notification of the Government to the Controller:

Even if the Controller has not earlier issued secrecy directions for an invention, the Central Government may, at any time before a patent is granted, declare the invention to be of importance for national defence purposes, even though the Controller has not issued secrecy directions.

 Impact of Government's Notification:

If the Central Government communicates to the Controller that an invention is of use for defence, then the provisions of Subsection 1 would automatically come into play, even if the Controller had not issued secrecy directions earlier. The Controller is mandated to issue secrecy directions and communicate the same to the Central Government.

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Purpose and Significance of Secrecy Directions under Section 35 of the Patent Act

The core purpose of Section 35 is as follows:

1. Protection of National Security

The primary role of secrecy directions is that inventions that may have a military, strategic, or security implication should not be placed in the public domain. This is very important because technologies that may affect the country's defense capabilities should be protected from falling into the wrong hands.

2. Balancing Patent Protection with National Interest:

While the Patents Act protects the rights of inventors by granting patents, Section 35 balances this by ensuring that inventions relevant to defence are not disclosed prematurely so that no security risks arise.

3. Control over Sensitive Information

Secrecy directions give the Central Government and the Controller the power to exercise control over sensitive inventions so that they are not exploited for purposes that could undermine national security.

Also, See Which are the Inventions Not Patentable under Section 3 of the Indian Patent Act

In Summary,

Section 35 of the Patents Act, 1970 provides legal authority to the management of inventions with defence significance, making sure that inventions that can impact national security are not disclosed. It gives an authority to the Controller of Patents to issue secrecy directions and also empowers the Central Government to intervene whenever necessary. The mechanism allows for the confidential treatment of possibly sensitive innovations and prevents their disclosure so that national interests are protected, particularly in cases of military or strategic technologies.

FAQs on Section 35 of the Patent Act 1970

Q1. What are the purposes of issuing secrecy directions under Section 35?

Secrecy directions are issued when inventions relevant for defence purposes require secrecy. Such inventions have to be protected to maintain national security, and their information must not be published or communicated to others.

Q2. What are the conditions that are essential to issuing secrecy directions in a patent?

The Controller can issue directions for secrecy anytime after the patent application date if the invention is considered relevant to defence or national security.

Q3. What if the Central Government disagrees with the secrecy directions given by the Controller?

If the Central Government decides that the disclosure of the invention would not adversely affect national security, it shall notify the Controller, who would then cancel the secrecy directions so that the invention can be published.

Q4. Can the Central Government, in its discretion, impose secrecy directions?

Yes, even if secrecy directions are not given by the Controller, the Central Government may notify the Controller to apply them if it feels that the invention is relevant to defence purposes before the patent is granted.

Q5. How long do secrecy directions apply to a patent?

Secrecy directions remain in force unless and until the Central Government or the Controller determines that the invention is no longer so entitled to secrecy or until they revoke the directions after reconsideration.

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