Patent law is a branch of intellectual property law that grants inventors exclusive rights to their inventions for a limited period, typically 20 years from the filing date of the patent application, to encourage innovation, disseminate knowledge, promote economic growth, and provide legal protection to ensure legal safeguards from misuse.
The Indian Patent Act, 1970 (the "Act"), apart from giving these rights, also incorporates critical provisions to safeguard national security by regulating the public disclosure of inventions, particularly those with military or strategic relevance. Inventions that may pose risks to national defence can be subjected to secrecy directions, ensuring sensitive technologies remain confidential and are not accessible through public domains.
INVENTIONS THAT FALL UNDER SECRECY DIRECTIONS
Secrecy directions are often issued by the Patent Office for inventions with potential military or defence applications. Technologies related to weapons, surveillance, encryption, and other strategic areas face secrecy directions. Certain critical infrastructure inventions that could impact critical national infrastructure, such as energy, communications, or transportation systems, may also be subject to secrecy directions to prevent potential sabotage or exploitation.
PROVISIONS FOR SECRECY DIRECTIONS
Section 35 of the Act empowers the Patent Office to refer a pending application to the appropriate government authority if, upon evaluation, it appears to be related to national security. The application is typically referred to the Defence Research and Development Organization(DRDO), a government organisation, which must assess whether publication would compromise national security. If no threat is found, the government instructs the Patent Office to revoke the secrecy direction. Alternatively, the government may also independently assess and identify defence-related inventions and notify the Patent Office to issue secrecy directions before grant. These measures strike a balance between national interest and procedural fairness for applicants by preventing premature disclosure of sensitive technologies.
DURATION AND IMPACT OF SECRECY DIRECTIONS
To ensure that secrecy orders are not indefinite, Section 36 of the Act mandates a review every six months or upon reasonable request by the applicant. If the invention no longer poses a threat or has already been published abroad, the secrecy order is revoked, thus lifting the restrictions. The outcome of each review is communicated to the applicant, typically within 15 days (Rule 72(1)). While secrecy directions are in force, Section 37 stipulates that the patent application cannot be refused by the Patent Office, but can proceed to grant if found to be in order. Also, the applicant cannot file an appeal against the direction. If the Government uses the invention, it is treated as if the patent has been granted, and the inventor may be compensated as per Sections 100, 101, and 103 of the Act. The applicant may also receive compensation for any hardship caused by the secrecy directions. Moreover, no renewal fees are required while secrecy directions remain in force. This provision reinforces transparency and protects inventor rights while maintaining national security.
POST REMOVAL OF SECRECY DIRECTIONS
Once the secrecy direction is revoked, Section 38 of the Act allows the Controller to extend deadlines for any pending action that remains pending from the applicant to put the application in order. This ensures that applicants are not penalized for delays caused during the secrecy period and can resume the patent process under fair conditions. Rule 72(2) complements this by limiting time extensions to the duration of the secrecy period, thereby ensuring procedural fairness and timely updates.
RESTRICTIONS ON INDIAN APPLICANTS
The Act also regulates international filings by domestic applicants. Section 39 of the Act restricts Indian residents from filing patent applications abroad without prior written permission or a Foreign Filing Licence (FFL) from the Patent Office. However, a prior written permission is not required if the invention has been first filed in India at least six weeks before the international filing and no secrecy directions are in force. This provision prevents unauthorized disclosure or export of sensitive technologies by Indian residents and ensures government oversight.
To operationalize this restriction, Rule 71 outlines that an application on Form 25 is to be made by the applicant for seeking such written permission. The Patent Office typically grants permission within 21 days, except in cases involving defence or atomic energy, where the timeline begins only after government consent is received.
In the matter Puneet Kaushik & Anr. v. Union of India & Ors. [W.P.(C) 1631/2013], it was observed by the Hon'ble Delhi High Court that
"In the factual matrix of the present case, the appellant has expressly moved a PCT application at the Indian Patent Office. This is evidenced by the fact that the application was moved by filing a request under Form-25, which is specifically prescribed for a PCT application. Section 39 is therefore, to apply to such PCT application. The Respondent office could not have accepted an application without the requisite permission simply owing to the fact that Section 39 bars such application to be made."
Thus, the need to comply with Section 39 of the Act to apply for an international application, including PCT, which was also upheld by the division bench [LPA 884/2013 & CM 4330/2014].
In Selfdot Technologies (OPC) Pvt. Ltd v. Controller of Patents [(T)CMA(PT)/61/2023], the Hon'ble Madras High Court clarified that a patent of addition (which includes additional matter not disclosed in the main application) stands on a different footing from a divisional application and, thus requires separate permissions for FFLs.
CONTRAVENTION OF SECRECY DIRECTIONS
To enforce compliance, Section 40 imposes strict penalties for violating secrecy or foreign filing rules. Any breach results in the patent application being deemed abandoned, and any granted patent is liable to be revoked under Section 64. Section 118 imposes additional penalties such as imprisonment for upto two years, or fine, or both. Further, Section 41 prevents an applicant from challenging the order issued by the Patent Office or the government in any court.
CONCLUSION
The secrecy provisions in the Indian Patents Act, 1970, play a vital role in safeguarding national security by allowing the government to withhold public disclosure of defense-related inventions. Several countries, such as the USA, UK, Germany, France, and China, also impose restrictions on patent filings outside such countries to protect national security. They ensure technologies of national importance remain under control until deemed safe, while also offering compensation to affected inventors—balancing security needs with inventor rights.
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