This post was first published on 14th March, 2011.
In India, just like in other jurisdiction once an application for filing the patent has been made, the application shall be published for public inspection by 18 months from date of filing or priority date. Indian Patent Act 1970 makes it mandatory to publish the patent applications for Public inspection in the official gazette. Such publications in official gazette shall be issued every Friday by patent office.
Indian Patent office provides publication of official gazette in their website mentioned below: http://ipindia.nic.in/. This is a very progressive step taken by the Patent office which would help to get constant access of the published patent applications online. The online database provided by the patent office is at present having all journals issued from 2005. Journals prior to 2005 can be accessed in patent office library.
The publication of patent applications in official gazette shall provide the following details of the application:
- Application number
- Applicant Name and address
- Title of the invention
- Priority details, if any
- Abstract
One can actually get such published patent applications information through other online databases like Big Patents: http://india.bigpatents.org/
Concept of early publication: An interesting concept of request for early publication is available for applicant. In case the applicant wants his application to be published before the normal period of 18 months, the applicant may request controller for early publication of the patent application before the expiry of 18 months. Such a request shall be made on Form 9 – request for early publication.
The controller of patents shall publish such application within one month from the date of request for early publication.
The advantage of publication of a patent application is that it provides rights and privileges as if a patent is granted. However, the limitation on this monopoly is placed as the applicant can not institute any legal proceeding for infringement till the time the application is granted. Hence there are many vendors/applicant who opt for this request in order to be eligible for their rights a bit early.
Further, it has to be noted that in case of secrecy direction or abandoned application or where application is withdrawn, the Controller shall withhold the publication by 18 months. In case of secrecy direction, application shall be published either after the expiry of such a period issued under secrecy direction or after the expiry of 18 months.
As a third party, publication of a patent application provides opportunity to oppose the application for grant on the various grounds as allowed in Indian Patent Act 1970.
Similar publication shall be done once the patent is granted. The granted patent is published in official gazette for a period of one year to make way for any post grant opposition by the third party.
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