Can we file a patent application for a published paper in India?
Section 2(l) of the Indian Patent Act defines
New Invention as any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification i.e the subject matter has not fallen in public domain or that it does not form part of the state of the art.
The examiner to whom an application for a patent is referred under section 12 of the Indian Patent Act shall make investigation for the purpose of ascertaining whether the invention so far as claimed in any claim of the complete specification has been anticipated by previous publication and by prior claim.
To know whether a paper published is eligible to apply for a patent, the answer is that the publication of an invention in any form by the inventor before filing of a patent application would disqualify the invention to be patentable. However, a grace period of 12 months is available in India for filing a patent application after disclosure of the invention through public display or publication which is dealt in Section 31 –Anticipation by Public Display of the Indian Patent Act.
The contents of the section are:
A complete specification shall not be deemed to have been anticipated if:
the invention has been displayed at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government ; or
the invention is described in a publication in consequence of display of the invention in such an exhibition; or
the invention has been used by any person without the consent of the true and first inventor or a person deriving title from him after it has been displayed in such an exhibition; or
disclosing the invention before a learned society or publishing the invention in the transaction of such society;
provided the application for patent is filed within 12 months from aforementioned public display.
It is therefore derived from Section 31 that the grace period of 12 months is available only under special circumstances.
It is always advisable and safe to file a patent first and then publish later.
