Patent Agent Examination 2025| Paper 2 (II) | Question no 4

 Mr. Ghanshyam develops an improved process for preparing free-flowing particles by using a booster charge in a tubular detonator. Upon filing for a patent, the government imposes secrecy directions due to the potential military application of the technology. What are the potential consequences of these secrecy directions? Discuss the process and provisions for reconsideration of the secrecy direction and the circumstances under which they may be revoked. Mention the relevant sections and rules.

Ans:

Secrecy directions under the Indian Patents Act, 1970, are imposed to safeguard national interests, especially when an invention has potential military applications. Below is a detailed discussion of the consequences, process, and provisions for reconsideration and revocation of secrecy directions:

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1. Consequences of Secrecy Directions

When secrecy directions are imposed under Section 35, several restrictions are placed on the patent application and the patentee:

1. Restriction on Publication:

   • The application is not published, even though it qualifies for publication under Section 11A. The invention remains confidential.

2. Restriction on Communication:

   • The applicant cannot communicate the details of the invention to any foreign entity, including filing for patents abroad, unless prior permission is obtained from the Controller and the Central Government.

3. Prohibition on Commercial Use:

   • The applicant is prohibited from commercially exploiting the invention until secrecy directions are revoked.

4. Delays in Patent Grant:

   • The grant of the patent is deferred until the secrecy directions are lifted.

5. Compensation to the Applicant (Section 40):

   • If the secrecy directions cause loss or damage to the applicant, they may claim compensation from the government. The amount is determined by the High Court if not settled mutually.

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2. Process and Provisions for Reconsideration of Secrecy Directions

The applicant has the right to request a reconsideration of the imposed secrecy directions. The relevant provisions and process are as follows:

1. Request for Reconsideration (Section 36):

   • The applicant can request the Controller to reconsider the secrecy directions by submitting a written application explaining why the directions should be lifted.
   • The Controller forwards the request to the Central Government for review.

2. Review by the Central Government:

   • The Central Government consults the relevant authority (such as the Ministry of Defence) to assess the potential risk to national security and determine whether the directions should be maintained, modified, or revoked.

3. Decision Communication:

   • The decision of the Central Government is communicated to the applicant through the Controller.

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3. Circumstances for Revocation of Secrecy Directions

Secrecy directions may be revoked under Section 38 if:

1. No Further Risk to National Security:

   • The Central Government determines that the invention no longer poses a threat to national security or defense.

2. Change in Circumstances:

   • If international or national circumstances change, making the secrecy directions unnecessary.

3. Periodic Review:

   • The Central Government is required to periodically review secrecy directions and revoke them when no longer justified.

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4. Relevant Sections and Rules

1. Sections:

   • Section 35: Imposition of secrecy directions.
   • Section 36: Request for reconsideration of secrecy directions.
   • Section 37: Communication of inventions to foreign entities.
   • Section 38: Revocation of secrecy directions.
   • Section 40: Compensation for loss due to secrecy directions.

2. Rules:

   • Rule 72: Communication of secrecy directions to the applicant.
   • Rule 73: Procedure for reconsideration of secrecy directions.
   • Rule 74: Periodic review of secrecy directions.

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Summary

Secrecy directions are a mechanism to balance patent rights with national security. They impose restrictions on the publication, communication, and commercial use of the invention. The applicant can request reconsideration under Section 36, and the directions may be revoked if the risks to national security are mitigated. The process ensures that both innovation and national security interests are safeguarded.