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The Patent prosecution starts only when the patent application is published. The patent office sense intense in applicant only when the application is published. Patent application shall be published in 18 months from the date of filing or for early publication file form 9 then the application will be published in one month.
Application shall not be published if,
- Secrecy direction is imposed under S.35(2)
- Application is abandoned under S.9(1) if Complete Specification is not filed after filing of Provisional Specification
- Application is withdrawn
The patent system is structured in such a way that the timeline for doing things are mentioned, if you fail to do those thighs the application will be abandoned or withdrawn.
Request for Examination should be filed using Form 18, Controller shall examine the application, If Request for Examination is not made under 48 months, application shall be treated as withdrawn by the applicant
Ref: Section 11A, 11B, 12, Rule 24, 24A, 24B, Form 9, 18
Under Section 35 if the secrecy direction is imposed the application is not published as it is prejudice to the defense of India.
The process of prosecution can continue and can make it ready up until the grant but the grant shall not be given and application shall not be published. The prosecution is not stopped due to the secrecy direction Under 37(1), if FER is issued the applicant reply to the FER. If the further objections is issued by the patent office the applicant can respond to it, if the patent office insist on amendment the applicant can amend the patent, Only the Grant or Reject cannot be processed by the patent office.
The Controller may extend the time for doing anything required or authorized to be done with the application whether or not time has previously extended. If the Examination has to be made under Section 11B or Rule 24B the Request for Examination shall be made within 48 months or 6 months from revocation of secrecy direction, whichever is later. The controller can extend the time when Secrecy direction is revoked under Section 38 and if the secrecy direction was imposed for the period of 6 months the extension of time shall be for only 6 months.
Hope this answers your question.
1) Under S. 29 and 31, If the invention is published by any person without the consent of the true and first inventor, The inventor should file the application as soon as reasonably practicable without any grace period to claim the priority of the application stating the invention was published without his consent by proving information that my invention was displayed earlier than the other person who submitted the patent application after my display of the invention so according to section 29(2) & (3) and 31(c) the priority date of my invention is earlier than the date of filing of the invention and person has derived the title without my consent. Under S. 29(3) that the invention was contravenes the right of my patent without my consent.
Then the later filed application for patent shall not deemed to have been anticipated from the earlier application.
Under S. 26(2) controller shall revoke the patent on proceedings under S. 25(2)(a) invention wrongfully obtained. A request can be made by the opponent in Form 12 along with prescribed fees, Upon such request made under prescribed manner, the controller may direct the opponent to proceed the application in his name with the Benefits of priority date of such application & grant him the patent.
2) If the invention is published in a paper or exhibition by true and first inventor (i.e., by you) with consent, you should file the application for a patent within a year
Patent is granted to the person who has filed application earlier (First to file), If someone show case your invention without your consent then the invention shall not be deemed to have been anticipated by reason that date of filing of your application is earlier than other persons display.
Provisional Specification is a temporary document, which sets up the place or marks the flag for setting priority, when you file Provisional Specification you preserve the priority. Provided you follow it up with Complete Specification, so in cases where you don’t follow Provisional with a Complete, natural consequence is that it will expire, so we do not consider transient or temporary document for considering novelty, that is the rule in Patent Law. A Provisional may get evolved into Complete or it may expire, that is the reason Provisional is not used to determine Novelty and hence it is used to determine Priority.
Provisional Specification is filed to claim the priority date of the invention and it should be followed by filing Complete Specification within 12 Months from the date of filing of the application.
for those to whom the above link is not working.
Please use this link: https://nptel.ac.in/courses/109106137/