Patents are built on disclosure. But some inventions are too sensitive to be made public. India’s Patents Act, 1970 provides a structured mechanism, Sections 35 to 42, through which certain applications can be held in confidence when their disclosure might affect national security or defence.
Introduction: Why Secrecy Directions Exist
The inventor discloses the invention fully to the public, and in return receives a time-limited exclusive right. But full public disclosure of certain inventions, particularly those with defence applications, could harm national security before the state has had the opportunity to assess the risk. Countries including the United States, the United Kingdom, and Germany all maintain mechanisms to restrict disclosure of such inventions. India’s framework is contained in Sections 35 to 42 of the Patents Act, 1970.
The framework is designed to ensure that sensitive technologies are handled in a way that protects national interests while preserving, as far as possible, the legitimate expectations of the applicant. Understanding how it works is essential for anyone innovating in defence, dual-use, aerospace, encryption, surveillance, or atomic energy.
Section 35: When Can Secrecy Directions Be Imposed?
| S 35 | Imposition of Secrecy Directions The Controller of Patents has authority to issue secrecy directions in relation to any patent application that appears relevant for defence. This applies to applications filed before or after the commencement of the Act. |
Secrecy directions may be imposed in two broad situations:
- if the invention falls within a class of inventions notified by the Central Government as being relevant to defence; or
- if, on examining the application, the Controller independently forms the view that the invention may be useful for defence purposes.
Once such an invention is identified, the Controller issues directions to the applicant restricting communication or publication of the invention and simultaneously informs the Central Government. The Government then decides whether publication of the invention would be prejudicial to defence or national security. If it concludes that disclosure would not cause any harm, it instructs the Controller to revoke the secrecy directions, and the applicant is notified.
Even where the Controller has not initially imposed secrecy directions, the Central Government retains the power to step in directly and require that secrecy directions be applied to an application at any time before grant to ensure sensitive inventions are protected.
Section 36: How Long Do Secrecy Directions Last?
| S 36 | Duration and Periodic Review Secrecy directions are not intended to operate indefinitely. The Central Government must review them every six months, or upon reasonable request by the applicant. |
The Government is expected to revoke secrecy directions where the invention no longer poses a risk to national security. In the case of a foreign applicant, revocation must also follow if the invention has been published outside India. This prevents an anomalous situation where an invention freely available abroad remains restricted in India. Once the decision to revoke is taken, the applicant should be informed without delay.
The six-month review cycle means an applicant subject to secrecy directions is not left indefinitely in the dark. They have a periodic right to expect the position to be reconsidered, and the Government must justify continued restriction at each review.
Section 37: What Happens to the Application During Secrecy?
| S 37 | Effect on Application Progress While secrecy directions are in force, the application cannot be published and a patent cannot be granted in the ordinary course. However, internal processing can continue up to the grant stage. |
While secrecy directions are in force, Section 37 limits how the patent application can progress.
The two key restrictions are:
- The application cannot be published, and
- A patent cannot be granted in the ordinary course.
However, the application can proceed internally up to the grant stage, and if the invention is used by or on behalf of the Government, it is treated as if the patent had already been granted.
If, during the period of secrecy, the invention is used by or on behalf of the Government, the law treats such use as if a patent had already been granted. Where an applicant suffers hardship as a result of secrecy directions for example, because commercialisation is delayed or markets are lost the Central Government has the power to provide reasonable compensation.
Section 38: Restoring Timelines After Secrecy Is Lifted
| S 38 | Extension of Time Limits Once secrecy directions cease to operate, the Controller may extend time limits for any step or act under the Patents Act that could not reasonably have been completed during the secrecy period. |
Under Section 38, when secrecy directions cease to operate, the Controller may extend time limits for taking any step or doing any act under the Patents Act that could not reasonably be completed earlier because of the directions. This safety valve is particularly relevant where the normal statutory deadlines would otherwise have expired during the secrecy period.
Section 39: Foreign Filing and the Foreign Filing Licence
| S 39 | Foreign Filing Licence (FFL) Indian residents must obtain a written permit, commonly called a Foreign Filing Licence, before filing a patent application for the same invention outside India. |
Broadly, the Controller may issue this written permit if:
- a corresponding patent application has already been filed in India, and
- there are no secrecy directions in force in relation to that application, or any such directions have already been revoked.
Where the invention relates to defence or atomic energy, prior consent of the Central Government is mandatory before an application is filed abroad. Filing outside India without such consent can have serious consequences.
The six-week rule
If an Indian resident files a patent application in India and waits at least six weeks without receiving any secrecy directions, they are generally free to file abroad without a separate FFL application. However, where the invention relates to defence or atomic energy, this pathway does not apply. Central Government consent remains mandatory, and that requirement is not waived by the passage of time.
Sections 40 and 41: Consequences of Violation
| S 40 | Abandonment and Revocation If an applicant contravenes secrecy directions or files abroad without the required permission, the Indian patent application may be deemed abandoned and any granted patent is liable to revocation. |
The consequences of violating the secrecy direction framework are severe. Under Section 40, contravening secrecy directions under Section 35, or filing abroad without the written permit required by Section 39, exposes the applicant to two distinct penalties: the Indian patent application can be treated as having been abandoned, and any patent that has already been granted on the application is liable to be revoked.
These are not discretionary penalties. They are statutory consequences that follow from the act of violation, and they cannot be avoided by arguing that the violation was inadvertent or that the invention was not actually sensitive.
| S 41 | Finality of Orders All orders of the Controller and Central Government relating to secrecy directions are final and cannot be challenged in court. |
Section 41 removes judicial review from the secrecy directions process entirely. An applicant who disagrees with a secrecy direction, or with the Government’s refusal to revoke it, has no recourse to the courts. The only avenue available is the six-monthly review process under Section 36 and, where applicable, a request for early review.
This is an intentional legislative choice. Secrecy directions involve national security assessments that are regarded as inherently unsuitable for judicial determination. The trade-off for removing judicial review is the mandatory periodic review obligation on the Government and the compensation mechanism in Section 37.
Section 42: Information Sharing with the Government
| S.42 | Information Sharing The Controller is permitted to share patent application information with the Central Government for security assessment purposes. |
Section 42 further clarifies that the Controller is allowed to share patent information with the Central Government for assessment purposes, ensuring security reviews can be properly conducted.
What This Means for Patent Applicants
Taken together, Sections 35 to 42 create a framework that balances two competing goals:
- the encouragement of innovation through patent protection, and
- the protection of national security.
For inventors, particularly those working on defence technologies, dual-use systems, encryption, surveillance, aerospace, or atomic energy, the key takeaways are:
- Your application may be made subject to secrecy directions, which can delay publication and grant.
- Despite the delay, the application can continue to be processed internally, and Government use during this period is treated as if a patent had been granted, with scope for compensation.
- You must not file abroad without securing the necessary Foreign Filing Licence and, where applicable, Central Government consent.
- Breaching secrecy directions or foreign filing rules can lead to your application being treated as abandoned or your patent being revoked, with no judicial review of the underlying secrecy orders.
Conclusion
India’s secrecy direction framework under Sections 35 to 42 of the Patents Act, 1970 is a carefully constructed mechanism that sits at the intersection of IP law and national security policy. It preserves the patent system’s essential character while allowing the state to intervene where disclosure of an invention would be contrary to national interest.
For patent applicants, the framework creates both obligations and protections. Understanding the trigger conditions for secrecy directions, the foreign filing licence requirement, the periodic review process, and the consequences of non-compliance is essential groundwork for anyone seeking patent protection in sectors that touch on defence, atomic energy, or other sensitive technology fields.
Governing Law
Patents Act, 1970: Section 35, Section 36, Section 37, Section 38, Section 39, Section 40, Section 41, Section 42 | Patents Rules, 2003 (as amended 2024)
