Power of Controller in cases of anticipation S.18

[ameya tambe]

How is S.18 (3) different from the previous subsection (2)?

[Ahmed Sayeed]

In both subsections(2) and (3) of section 18, there is a common power that the controller has i.e to insert a reference of the prior art in the applicant complete specification. This occurs in cases when the applicant during the time of his/her patent application was not able to know the prior art because the prior art was published on (or) after the new applicants patent application. So there is no way the new applicant would have known the prior art.

Difference:
Prior art which was PUBLISHED on (or) after the new applicants patent application as per Subsection(2) was APPLIED FOR PATENT AFETR the Indian act 1970 came in existence i.e AFTER 1970.

Prior art which was PUBLISHED on (or) after the new applicants patent application as per Subsection(3) was APPLIED FOR PATENT BEFORE the Indian act 1970 came in existence i.e BEFORE 1970 (during the existence of British act 1911)

[ameya tambe]

but nothing as such ‘before or after 1970 act’ is mentioned in section 18(3)

[Ahmed Sayeed]

Hi ameya tambe,

You are right that ‘before or after 1970 act’ is not mentioned anywhere in section 18(3). The language used in the act is not straight forward. The answer which I mentioned previously is after going through other sections of the act as well, after which I got to know how ‘before or after 1970 act’ has come in the picture of 18(3). So I recommend you to note down your queries and go through the complete act after which there’s a huge possibility that you can figure out yourself which may take serious amount of time.

Else I recommend you to subscribe to Lexcampus courses where you can get all the answers. Thank you.

[aditya kumar]

Confusion is obvious. There are two conditions under section 13 – 1) document published before the filing date of our invention (lets assume for the sake of understanding that we are filing an application for a patent), and 2) document published after the filing date of our patent application.
Coming to Sections 18 (2) & 18 (3). The differentiating point is “priority date”.
Under section 18(2), if our patent application is anticipated by a document as referred in section 13(1)(b), then either we need to satisfy the controller that the priority date of our application is earlier than the cited document, or simply amend the complete specification.
Now, coming to section 18(3)- here our patent application is being anticipated by a document referred under section 13(1)(a), and such document is published after the “priority date” (not the filing date) of our application. The priority date is an earlier date from where a patent application takes priority so that an extended time period will be available (e.g., convention & PCT applications). So, a document as referred in section 13(1)(a) is published before the filing date of our application, but it might be published after the priority date of our application (if our application is taking priority from any other convention/pct/parent patent application.

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