Introduction:
The publication of a patent application in the Patent Journal, is one of the most crucial steps involved in the patent registration process. Much like in any other jurisdiction, an application in India, shall be published in the official gazette for public scrutiny, within 18 months from the date of priority or first filing, whichever is earlier; provided the said application is made in accordance with the Indian Patents Act.
Patent Publication:
A patent application may be published in one of two ways; i.e., Automatic and Early publication.
Automatic Publication:
Near the conclusion of the 18-month period from the date of priority or filing, the patent application is automatically published in the Official Patent Journal.Usually, the publication takes place in the month prior to the date of expiry of the 18-month period.This process is referred to as automatic publication of a patent application under Section 11A.
Nonetheless, any of the following reasons could prevent a patent application from being immediately published in the official patent gazette:
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; whichever is later.
The publication of patent applications in official gazette shall provide the following details of the application:
After a patent application has been published pursuant to section 11A, the Patent Office makes the specifications and drawings of a patent application available to the public upon payment of the requisite fees.
A patent application’s publication has the benefit of conferring rights and privileges, equivalent
to those of a patent that has already been granted. The applicant however, cannot file a lawsuit for infringement prior to the application being granted; which places a restriction on this monopoly. Consequently, many applicants opt for early publication of their patent application, to be eligible for their rights a bit earlier.
Early Publication:
An applicant may submit a request for early publication of their patent application, in accordance with section 11A (2) of the Patents Act. In essence, early publication refers to making a patent application public prior to its normal publication date.
The applicant may ask the controller for the early publication of their patent application before the standard 18-month time expires, if they want it to be published earlier. A request for the same shall be made by filing form 9 and paying the requisite fee. Within a month from the date of receiving a request for early publication, the application is published by the controller of patents. It must be noted that the fact that an application corresponds to another existing application, does not prevent its early publication.
Conclusion:
When a patent application is published, anyone has the chance to object to it before the patent is granted, on any of the grounds permitted by the Patents Act of 1970. This is referred to as pre-grant opposition. Following the issuance of the patent, the granted patent is published in the official patent gazette. Third parties still have an opportunity to oppose such grant. This is known as post-grant opposition. It can be filed within 12 months from the date on which the grant of the patent was published in the official gazette.